# Opposition Brief — Texas v. De Freece > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0913%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1993 - **Citation:** 510 U.S. 905 ## Text Supreme Court, U.S. ORIGINAL sb we SEP 8 1993 OFFICE OF THE Ch na ee ” No. 92-1882 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1992 THE STATE OF TEXAS, Petitioner HAROLD LINDSAY DEFREECE, Respondent ON PETITION FOR A WRIT OF CERTIOR TO THE TEXAS COURT OF CRIMINAL APP RI ALS A A EALS RESPONDENT’S BRIEF IN OPPOSITION MARK STEVENS 310 S. St. Mary’s Street Tower Life Building, Suite 1505 San Antonio, TX 78205-3192 (512) 226-1433 State Bar No. 19184200 Counsel for Respondent QUESTION PRESENTED Did the Texas Court of Criminal Appeals correctly hold that an indigent accused, who has a_= substantial history of mental impairment and whose sole defense is insanity, is entitled under Ake v. Oklahoma, 470 U.S. 68 (1985), to appointment of a psychological expert to assist in the evaluation, preparation, and presentation of his defense, rather than the "disinterested" expert provided by Texas law? ii i ca i, TABLE OF CONTENTS Page QUESTION PRESENTED Se le an ee ee ee ee oie ee ae ee a se i ee ee Bh ee OE TABLE OF AUTHORITIES ae ee ee ee ee ee ee ee ee ee ee ee ee ae RESPONDENT’S BRIEF IN OPPOSITION Pee eee Oe ee ee ee ee er ee ee ee ee OPINIONS BELOW oe Oa es ee Cae a ee i een a oe ae JURISDICTION ee ee ee ee ee Se ee ae eg ee er ren oe eee Se Ot CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED oe a Ue ee oe ta ee REASONS WHY THE PETITION SHOULD BE DENIED... eel er ae le ae eee a AKE CLEARLY MANDATES APPOINTMENT OF AN ASSISTING EXPERT ae Mx SRG. 5S Cee Ge Se Pee a kb ae Se ak ee ee 4 B. A_ Review Of The Cases Reveals No Problem With ee ee ng lk kk ck lk kk else ee lo kth a & Cx Scholarly Commentary Overwhelmingly Supports The Right To An Assisting Expert ..........8 Kis CONTRARY TO WHAT THE PETITIONER ASSERTS, THE AUTHORITY CONFLICTING WITH DEFREECE IS INSUBSTANTIAL .... oar eat ee ee III. THERE ARE NO IMPORTANT POLICY OR COMITY CONSIDERATIONS MILITATING AGAINST THE DECISION BELOW a ns ae ae. ey ae ee ee ai A. DeFreece Will Not Open The Floodgates To Multiple Experts, Or To Claims Of Ineffective Assistance Of Pe 6 6 aS ee ee Oe ae te ae ee a ee 11 B. Neither The Evidence Nor Common Sense Supports Petitioner’s Attempt to Raise The Financial Bee «8 6 ee ae ee ewe ee a eae . - / 13 =; Mr. DeFreece Did Not Forfeit His Right To An ee a aaa a aaa eee 13 Vs THE PRESENT CASE PROVES THE WISDOM OF AKE . ioe ok ee 16 CONCLUSION oe OO eo OR AS ee Se ek ee a ee en a? CERTIFICATE OF SERVICE ee Se ee on ee ea ee ee ee A ee” 18 iii TABLE OF AUTHORITIES Cases Ake v. Oklahoma, 470 U.S. 68 (1985) a a ee ee ee Cowley v. Stricklin, 929 F. 2d 640 (11th Cir. 1991) . 2 Cuyler v. Sullivan, 446 U.S. 335 oo Pr ee . Djiadi v. State, 528 A. 2d 502 (Md. Ct. Spec. App. 1987) DeFreece v. State, 848 S.W. 2d 150 (Tex. Crim. App. 1993) Granviel v. Lynaugh, 881 F. 2d 185 (Sth Cir. 1989), cert. denied, 110 S.Ct. (1990) Liles v. Saffle, 945 F. 2d 333 (10th Cir. 1991) Lindsay v. State, 330 S.E. 2d 563 (Ga. 1985) po eta eee Seek Marshall v. United States, 423 F. 2d 1315 (10th Cir. 1970) ey er soa Palmer v. State, 486 N.E. 2d 477 (Ind. 1985) . ss Smith v. McCormick, 914 F. 2d 1153 (9th Cir. 1990) a? State v. Gambrell, 347 S.E. 2d 390 (N.C. 1986) BON ak lic ae i State v. Hoopii, 710 P. 2d 1193 (Ha. 1985) eae pn re Terry v. Rees, 985 F. 2d 283 (6th Cir. 1993) United States v. Chavis, 486 F. 2d 1290 (O.C. Cir. 1973) Pee rieeae United States v. Crews, 781 F. 2d 826 (10th Cir. 1986) rene ae iv Page passim 9,10 4,9,10,11,12,15 2577 United States v. Sloan, 776 F. 2d 926 Fae SEs SOE se oe a ces eae ae ee ee ce en tae ae Constitutions and Statutes mvs! Seen 5) GG ne ee ea ak eee a a ee eae ee ee Tex. Code Crim. Proc. Ann. art. 26.05(a) (Vernon 1989) ee a he ek Cae he ol A te Se oe la ee ey 13 sen. Coge Crim. Proc., OFt. 46.63 6 3 -«:s a% Vs & «ee eae ee Tex. Rev. Civ. Stat. Ann. art. 5547 (Vernon 1977) cre, $e RO OS Ley eee we ee ae ce cae ae ee 18 U.S.C. § 3006A(e) Se ee ee Se el Soe ee eee er ee ee 13 26 U.S.C. § 1257 se & oo 6 ee Oe 6 Se we Rk ee Ae ee eee Treatises After Ake: Implementing the Tools of an Adequate Defense, 7 Pace aes Bee COeeeE 3s we ew ee et ee he et et ee a a ee Ake v. Oklahoma: A Question of Experts, 12 Okla.City U.i.Rev. 368 (1987) ....5+-+.s2seectvseenvervsaecrild Comment, Nonpsychiatric Expert Assistance and the Requisite Shwoing of Need: A Catch-22 in the Post-Ake Criminal Justice System, 7 Deny Ses Dee -Ceeee) 6 6 6 6 os 6 6 6 eee ew eae we ew ee 8 Dubia, The Defense Right to Psychiatric Assistance In Light of Ake v. Oklahoma, Army Law., Oct. 1987, at 15 ... a ee ee a Due Process and Psychiatric Assistance: Ake vy. Oklahoma, 21 Tulsa L.J. 121 (1985) ......2.+e.e «ec cee. 9 Expert Services and the Indigent Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich.L.Rev. 1326 (1986) ..........4..8 Fourteenth Amendment -- Due Process and an Indigent’s Right to Court-Appointed Psychiatric Assistance in State Criminal Proceedings, 76 J. Crim.L & Crim. 1065 ti } Pree ee ee se Psychiatric Assistance for Indigent Defendant’s Pleading Insanity: The Michigan Experience, 20 U.Mich.J.L.Reform 907 (1987) ....... boa e, tilet Ah a oe Showlater & Fitch, Objectivity and Advocacy in Forensic Psychiatry After Ake Vv. Oklahoma, 15 J. Psychiatry & L. 177 (1987) ........ Pie Ter aah eee The Right to a Partisan Psychiatric Expert: Might Indigency Preclude Insanity?, 61 Poeewememws Oe (AUG)... kk tt, Te ee The Supreme Court: Leading Cases, 99 OO i i da ce ng No. 92-1882 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1992 THE STATE OF TEXAS, 5 Petitioner Vv. HAROLD LINDSAY DEFREECE, Respondent RESPONDENT’S BRIEF IN OPPOSITION TO THE HONORABLE JUSTICES OF THE SUPREME COURT: NOW COMES Harold Lindsay DeFreece, respondent, by and through his attorney of record, and files Respondent’s Brief in Opposition to the Petition for Writ of Certiorari filed by the State of Texas. OPINIONS BELOW The respondent Harold Lindsay DeFreece respectfully requests that this Court deny the Petition for writ of Certiorari seeking review of the Texas Court of Criminal Appeals’ opinion in this case. That opinion is reported at 848 S.wW. 2d 150 (Tex. Crim. App. 1993), and is attached as Appendix A. JURISDICTION Petitioner has invoked this Court’s jurisdiction to review the judgment of the Texas Court of Criminal Appeals pursuant to 28 U.S.C. § 1257. Respondent’s Brief in Opposition is filed on or before September 10, 1993, as requested by the Court. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Section One of the Fourteenth Amendment of the United States Constitution provides, in pertinent part: All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Article 46.03 § 3 of the Texas Code of Criminal Procedure provides, in pertinent part: (a) If notice of intention to raise the insanity defense is filed under Section 2 of this article, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health and mental retardation to examine the defendant with regard to the insanity defense and to testify thereto at any trial or hearing on this issue. * * * (dq) A written report of the examination shall be submitted to the court within 20 days of the order of examination, and the court shall furnish copies of the report to the defense counsel and the prosecuting attorney. 2 The report shall include a description of the procedures used in the examination and the examiner’s observations and findings pertaining to the insanity defense. The examiner shall also submit a separate report setting forth his observations and findings concerning: (1) whether the defendant is presently mentally ill and requires court- ordered mental health services; or (2) whether the defendant is a mentally retarded person as defined in the Mentally Retarded Persons Act of 1977 (Article 5547-300, Vernon’s Texas Civil Statutes). - * * * REASONS WHY THE PETITION SHOULD BE DENIED Petitioner asks that its petition "be granted to Clarify the holding of Ake v. Oklahoma .. . and resolve a substantial conflict among the circuits and state courts of last resort." [Petition, p. 7] In fact, there is no need to Clarify Ake, and there is no substantial conflict among the courts. Nor are there any other "special and important reasons" for granting this petition. See S. Ct. R. 10.1. Accordingly, the petition should be denied. I. AKE CLEARLY MANDATES APPOINTMENT OF AN ASSISTING EXPERT In this case, the Texas Court of Criminal Appeals relied on Ake _v. Oklahoma, 470 U.S. 68 (1985), to hold that due process required the appointment, not of a "disinterested" psychological expert who would report to the court, the prosecution and the defense, but rather, an expert who would assist Mr. DeFreece in the evaluation, preparation and presentation of his defense. DeFreece v. State, 848 S.W. 2d 150, 160 (Tex. Crim. App. 1993). Petitioner challenges this holding, asserting that it is unclear whether Ake requires the appointment of an assisting expert in cases such as Mr. DeFreece’s. According to the petitioner, certiorari should be granted to "Clarify" Ake. Petitioner errs in aeduing that Ake is unclear. That case plainly requires the appointment of a psychological expert to assist in the evaluation, preparation and presentation of the defense. And, the overwhelming number of courts and scholarly commentators who have considered the matter agree. A. Ake Is Clear On Its Face The simplest and most complete answer to the state’s charge that Ake does not clearly require an assisting expert is found in the text of that opinion. Ake begins by noting that the defendant must have a "fair opportunity to present his defense." Id. at 76(emphasis supplied). The Constitution requires that indigents have meaningful access to justice; "mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process." Thus, "a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Id. at 77(emphasis supplied). Psychiatric assistance "may well be crucial to the defendant’s ability to marshal his defense. Id. at 81(emphasis 4 supplied). Given the inexactitude of the science of psychiatry, it is often necessary for juries to "resolve differences in opinion within the psychiatric profession on the basis of evidence offered by each party. Id. at 81(emphasis supplied). "(P]sychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them." id(emphasis supplied). Accordingly, due process requires "access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Id. at 83(emphasis' supplied). "(Wjithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, ina meaningful manner, as to permit it to make a sensible determination." Id. at 82(emphasis Supplied). Psychiatric witnesses "know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers." Id. at 81(emphasis supplied). Finally, the Court noted that Mr. Ake "was denied the means of presenting evidence to rebut the State’s evidence of his future dangerousness." Id. at 83. "Without a psychiatrist’s assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a Significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor." Due process requires psychiatric assistance where "the relevance of responsive psychiatric testimony [is] so great. ..." id. at 84(emphasis supplied). In light of the emphasized language, no credible argument can be made that Ake is unclear. When a psycholegical expert is required, that expert must assist the defendant in evaluating, preparing and presenting the defense to the jury. A "disinterested" expert cannot do so. Certiorari is not needed to Clarify Ake. B. A_Review Of The Cases Reveals No Problem With Understanding Ake If petitioner is correct that Ake is unclear, the logical place for this unclarity to manifest itself would be in opinions by the lower courts. In fact, as DeFreece recognized, the case law is virtually unanimous in interpreting Ake to require an assisting expert. For example, this precise question was decided in Cowley v. Stricklin, 929 F. 2d 640 (11th Cir. 1991). There, the trial court appointed a Dr. Habeeb, who reported to the court, the prosecution and the defense. The court refused petitioner’s repeated requests for psychiatric assistance in the preparation of a defense. Id. at 641. This was error. The district court found that Dr. Habeeb was a "qualified," "independent psychiatrist." This may have been the case, but Dr. Habeeb did not provide the constitutionally requisite assistance to Cowley’s defense. Ake holds 6 that psychiatric assistance must be made available for the defense. This assistance may include conducting "a professional examination on issues’7~ relevant to- the defense," presenting testimony, and assisting "in preparing the cross-examination of a State’s psychiatric witnesses." Dr. Habeeb performed none of these essential tasks on Cowley’s behalf. Dr. Habeeb was called by the prosecution and testified against Cowley at both the competency hearing and the trial. His testimony was that he had examined Cowley and found him to be competent and that Cowley showed no signs of schizophrenia or other evidence of insanity at the time of the crime. Dr. Habeeb did not assist in Cowley’s trial preparation and obviously could not have assisted Cowley in his own cross-examination. Id. at 644(emphasis in original). Other cases, decided both before and after Ake, have reached the same conclusion: An indigent defendant in whose case insanity is a significant factor is entitled to an expert to assist in the evaluation, preparation, and presentation of the defense. E.gq., Terry v. Rees, 985 F. 2d 283, 284 (6th Cir. 1993); Liles v. Saffle, 945 F. 2d 333, 340 (10th Cir. 1991); Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1990); United States v. Crews, 781 F. 2d 826, 834 (10th Cir. 1986); United States v. Sloan, 776 F. 2d 926, 929 (10th Cir. 1985); United States v. Chavis, 486 F. 2d 1290, 1292 (D.C. Cir. 1973); Marshall v. United States, 423 F. 2d 1315, ~1319 (10th Cir. 1970); Lindsay v. State, 330 S.E. 2d 563, 567 (Ga. 1985); Palmer v. State, 486 N.E. 2d 477, 482 (Ind. 1985); State v. Gambrell, 347 S.E. 2d 390, 395 (N.C. 1986). og Scholarly Commentary Overwhelmingly Supports The Right To An Assisting Expert Much scholarly commentary has been generated on this subject, and the overwhelming bulk of it rejects the notion that a neutral expert can satisfy Ake and the Constitution. Representative is the following remark: If in these cases the defendant’s right to participate in the adversary process is to have meaning, the defendant must have the opportunity not only to ascertain the opinion of an expert, but also to work with the expert in the assessment and exposure of shortcomings in the testimony of experts for the prosecution. Showalter & Fitch, Objectivity and Advocacy in Forensic Psychiatry After Ake v. Oklahoma, 15 J. Psychiatry & L., 177, 183 (1987) (emphasis supplied); see Comment, Nonpsychiatric Expert Assistance and the Requisite Showing of Need: A Catch-22 in the Post-Ake Criminal Justice System, 3 Emory L.J. 995, 1008 (1989); Dubia, The Defense Right to Psychiatric Assistance in Light of Ake v. Oklahoma, Army Law., Oct. 1987, at 15, 21-22; Note, Ake v. Oklahoma: A Question of Experts, 12 Okla.City U.L.Rev. 385, 413 (1987); Note, Psychiatric Assistance for Indigent Defendant’s eadin nsanity: he Michigan Experience, 20 U.Mich.J.L.Reform 907, 915 (1987); Note, After Ake: Implementing the Tools of an \ Adequate Defense, 7 Pace L.Rev. 201, 239-240 (1986); Note, Expert Services and the Indigent Criminal Defendant: The Constitutional Mandate of Ake v. Oklahoma, 84 Mich.L.Rev. 1326, 1346-1355 (1986); Note, The Right to a Partisan Psychiatric Expert: Might Indigency Preclude Insanity?, 61 N.Y.U.L.Rev. 703, 725 (1986) ; Note, The Supreme Court: Leading Cases, 99 Harv.L.Rev. 120, 136 (1985); Note, Fourteenth Amendment -- Due Process and an Indiqent’s Right to Court-Appointed Psychiatric Assistance in State Criminal Proceedings, 76 J.Crim.L.& Crim. 1065, 1077 (1985); Note, Due Process and Psychiatric Assistance: Ake v. Oklahoma, 21 Tulsa L.J. 121, 154 (1985). II. CONTRARY.TO WHAT THE PETITIONER ASSERTS, THE AUTHORITY CONFLICTING WITH DEFREECE IS INSUBSTANTIAL The Texas Court of Criminal Appeals noted that "Cejvery court that has found the defendant did make an adequate showing that insanity would be a significant factor, however, has also held that Ake entitled him to more than an examination and testimony, if favorable, from a neutral psychiatric expert -- every court, that is, except the Fifth Circuit in Granviel v. Lynaugh, supra." DeFreece v. State;-848 S.W. 2d 150, 157 (Tex. Crim. App. 1993). Petitioner, on the other hand, asserts that "there in fact exists a diversity of opinion so great that this Court should grant review to clarify what Ake requires." (Petition, p. 7] In support of this bold assertion, petitioner then specifically discusses only two cases -- State v. Hoopii, 710 P. 2d 1193 (Ha. 1985) and Dijadi v. State, 528 A. 2d 502 (Md. Ct. Spec. App. 1987). {[Petition, p. 8-9] The court of criminal appeals distinguished both cases, finding that there the Ake claims had been denied because the defendants had not shown that insanity would be a significant 9 factor at trial. DeFreece v. State, 848 S.W. 2d 156. That is, Since the defendants in those cases were not entitled to any experts at all, those courts did not need to decide whether they were entitled to assisting experts. Hoopii and Dijadi do not conflict with DeFreece because they are not in point. As noted, the court below found only a Single case inconsistent with its holding: Granviel v. Lynaugh, 881 F. 2d 185 (Sth Cir. 1989), cert. denied, 110 S.Ct. 2577 (1990). There, the federal court of appeals rejected defendant’s challenge to the Texas statute, finding that the sole purpose of a psychiatric examination is to enable an expert to form an opinion about the defendant’s mental capacity. Accordingly, since the ability of the neutral expert to discover the truth about sanity was not compromised, there was no error. Id. at 191-92. Respectfully, the analysis in Granviel misses the point. Even assuming the sole purpose of an examination is to determine Sanity, Ake very plainly declares that examination is not the sole function of the appointed expert. Rather, the expert must also assist in the evaluation, preparation, and presentation of the defense. The Granviel court made no effort to address this additional function, and this omission was the source of its error. Thus, while Granviel is inconsistent with DeFreece, it is also inconsistent with the other post-Ake cases which have decided this issue. Considering the weight of authority, petitioner is wrong to categorize this as a "substantial" conflict. Far from substantial, Granviel should be viewed as aberrational. The conflict, such as 10 it is, is not special or important enough to warrant certiorari. IilI. THERE ARE NO IMPORTANT POLICY OR COMIT CONSIDERATIONS MILITATING AGAINST THE DECISION BELOW The petitioner argues in favor of a bright-line rule which would require only that a disinterested expert be provided to examine the defendant and consult with the defense. (Petition, p. 11) While such a bright-line rule may Or may not be easy to apply, as we have shown, it is simply not consistent with the plain language of Ake. Nor is there any support in the record for the assertion that the rule mandated by Ake and DeFreece "invites confusion by spawning numerous subsidiary issues." (Petition, p. 11] In fact, these so-called subsidiary issues are no more than ruminations by the state. A. DeFreece Will Not Open The Floodgates To Multiple Experts, Or To Claims Of Ineffective Assistance Of Counsel First, petitioner wonders whether the defense might be entitled to another expert if the assisting expert is not "in complete agreement with the diagnosis of the first expert and is unable ‘to identify the weaknesses in the State’s case, if any, by testifying himself and/or preparing counsel to cross-examine opposing experts.’" (Petition, p. 11] This concern, of course, was addressed, and negated, in Ake itself, where the Court declined to hold that an indigent defendant "has a constitutional right to choose a psychiatrist of his personal liking." Ake v. Oklahoma, 11 470 U.S. 83. Ake does not countenance multiple experts. Mr. DeFreece did not request multiple experts, but instead sought only an expert, expressly disavowing the right to choose anyone in particular. (R.IIb--4; Tr.--74-75) And, the court below specifically relied upon the fact that counsel "did not request a particular psychiatrist, but only a single competent one." DeFreece v. State, 848 S.W. 2d at 160. Petitioner’s expressed concern is without foundation. Second, the petitioner asks whether the assisting expert’s "failure to undermine the testimony of the state’s expert [will] result in a finding of ineffective assistance sufficient to constitute reversible constitutional error?" [Petition, p. 11-12] The fallacy of this concern is easily exposed. Presently, a non- indigent defendant is entitled to hire as many experts as he can afford who will work as members of the defense team. Petitioner, however, cites not a Single case in which the courts have attributed the ineffectiveness of retained experts to counsel so as to cause a Sixth Amendment violation. If such cases do exist at all, their number is indeed very small. If ineffective experts have spawned no spate of litigation in the non-indigent arena, why would such litigation be any more frequent simply because the expert in question is appointed by the court to assist an indigent defendant? Cf. cCuyler_v. Sullivan, 446 U.S. 335, 344 (1980) (defendants who retain their lawyers are entitled to the same Sixth Amendment protection as those whose lawyers are appointed). Again, petitioner’s concern is a non-issue. 12 B. Neither The Evidence Nor Common Sense Supports Petitioner’s Attempt to Raise The Financial Spectre Next, petitioner asks the Court to consider "how the state’s fisc might be affected," asserting that "it cannot be gainsaid that the state will suffer a substantial, additional economic burden if the opinion below is allowed to stand uncorrected." (Petition, p. 12] This argument is no more persuasive now than ef was when this Court rejected it in Ake. Ake v. Oklahoma, 470 U.S. at 78. Moreover, there is absolutely no evidence whatsoever in this record of any "substantial, additional economic burden" to be suffered by the state if an assisting expert were to be appointed when insanity is shown to be a Significant factor at trial. Significantly, after Ake was decided, Texas enacted legislation authorizing payment to court appointed counsel "for reasonable expenses incurred with prior court approval for purposes of investigation and expert testimony ... ." See Tex. Code Crim. Proc. Ann. art. 26.05(a) (Vernon 1989). See also 18 U.S.C. § 3006A(e). This legislation hardly comports with petitioner’s expressed fear of dire economic consequences. Finally, there is no reason to believe that any of the other jurisdictions which have found Ake to require the appointment of an assisting expert have experienced any substantial economic burden such as might outweigh an indigent defendant’s right to due process of law. Cc. Mr. DeFreece Did Not Forfeit His Right To An Assisting Expert The final "policy" point made by the petitioner is that mr. aa DeFreece somehow forfeited his right to an assisting expert when his counsel refused the trial court’s invitation, on the eve of cross-examination, to interview Dr. Heynen, and when he did not Subpoena Dr. Martinez. (Petition, p. 12] Neither argument is persuasive. The state tends to fault counsel for not subpoenaing Dr. Martinez, a psychiatrist also on the staff of Vernon State Hospital. Initially, we note that the assertion that Dr. Martinez possessed opinions "supportive of his insanity defense" is considerably overstated. There is no evidence that Dr. Martinez believed Mr. DeFreece legally insane. At most, the record shows that he had once found him to suffer from schizophrenia, chronic, undifferentiated type, and an Organic brain syndrome, and severe psychosocial stressors. [R.VI--17, 20) More significantly, even if this Court could properly assume something completely unsupported by the record -- that if Subpoenaed Dr. Martinez would have testified that Mr. DeFreece was legally insane -- this would not cure the constitutional problem in our case. Ake makes it clear that expert assistance is required not only for purposes of testifying, but also for assisting in the evaluation, preparation and presentation of the defense. Specifically, Ake guarantees assistance "to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses." Ake _v. Oklahoma, 470 U.S. at 82. sc. Ss constitutionally insignificant that counsel might have subpoenaed 14 Dr. Martinez to testify at trial, because this still would have left him unassisted in evaluating, preparing and presenting the defense. This is exactly what the Texas Court of Criminal Appeals found below. DeFreece v.State, 848 S.W. 2d at 160. After Dr. Heynen testified for the state, the court offered counsel the opportunity to interview her, before cross-examination. Petitioner is incorrect in suggesting that this eliminated any error under Ake. Mr. DeFreece was guaranteed expert assistance in the evaluation, preparation, and presentation of his defense. Permitting counsel a mid-trial interview contributes little if anything to these goals. Indeed, counsel explained at trial exactly why the offered interview was of no-use. "Your Honor, my greatest need is to be able to impeach her testimony and to discredit it, and of course, she’s not available for that. That’s what I need for cross examination, so I see no benefit in talking to her." "My problem is to point out where she’s wrong, Your Honor. I don’t believe she’s available for that." [R.V--8-9] No amount of interviewing Dr. Heynen would provide him with that which Ake and due process guarantee -- expert assistance in evaluating, preparing, and presenting the defense. Since she worked for all parties, disinterestedly, she necessarily could not help Mr. DeFreece "marshal his defense." I1 particular, since she was the state’s witness, she was singularly unable "to assist in preparing the cross-examination of a state’s psychiatric witness," or to suggest "the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers." Ake v. 15 Oklahoma, 470 U.S. at 81-82. Nor could she "offer a well-informed expert’s opposing view," or "responsive psychiatric testimony." Id. at 84. Since Dr. Heynen was incapable in this case of rendering the kind of assistance contemplated by Ake, it is illogical to argue that Mr. DeFreece forfeited his right to due process by declining a mid-trial interview. IV. THE PRESENT CASE PROVES THE WISDOM OF AKE A central purpose of Ake was to minimize the "risk of error." Ake v.Oklahoma, 470 U.S. at 79. Because psychiatry is not an exact science, it is often necessary for jurors to resolve evidentiary disputes where sanity is at issue. Id. at 81. This Court reached the general "conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an _ inaccurate resolution of sanity issues is extremely high." id. at 82(emphasis supplied). The truth of this general observation is vividly borne out in our case. The court-appointed expert was the only expert witness to testify, and she was called by the state. Her area of expertise was outside that of Mr. DeFreece’s counsel. Her testimony was based in part on voluminous written psychiatric records. Although she herself was unequivocal, she did admit that other professionals at the Vernon State Hospital had diagnosed Mr. DeFreece as more 16 ) disabled than she. These other experts were, in her unilateral opinion, less-qualified than she, and apparently, wrong. [R.V--20- 21} Without an assisting expert, counsel had no one to counter the testimony of Dr. Heynen. More importantly, he had no one to help him determine the viability of his defense, or to help him present his defense, or to help him prepare to cross-examine Dr. Heynen. In such a case, just as foreshadowed by Ake, "the risk of an inaccurate resolution of sanity issues is extremely high." Id. The sort of expert delineated in Ake would have constitutionally minimized this risk of error. The "disinterested" expert appointed by the court did not. The Texas Court of Criminal Appeals was correct to find that this violated Mr. DeFreece’s right to due process of law. CONCLUSION For these reasons, the petition for writ of certiorari should be denied. Respectfully submitted: DLL. MARK STEVENS/ 310 S. St. Mary’s Street Tower Life Building, Suite 1505 - San Antonio, TX 78205-3192 (210) 226-1433 State Bar No. 19184200 Counsel for Respondent 17 No. 92-1882 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1992 THE STATE OF TEXAS, Petitioner Vv. HAROLD LINDSAY DEFREECE, Respondent ON PETITION FOR A WRIT OF CERTIORARI TO THE TEXAS COURT OF CRIMINAL APPEALS RESPONDENT’S BRIEF IN OPPOSITION CERTIFICATE OF SERVICE I, Mark Stevens, a member of the bar of this Court, hereby certify that on this the 9th day of September, 1993, one copy of the Respondent’s Brief in Opposition was mailed, first class, postage prepaid to Mr. Charles A. Palmer, Assistant Attorney General for the State of Texas, P.O. Box 12548, Capitol Station, Austin, Texas 78711, counsel for petitioner herein. I further certify that all parties required to be served have been served. 18 150 Tex. ‘discretionary review unless such a finding is necessary to the disposition of questions presented to this Court. Tex. Const. Art. 5 § 6; See Arcila v. State, supra; Gipson v. State, 844 S.W.2d 738 (Tex.Crim.App.1992) (Benavides, J., concurring). The determi- nation of harm, if any, should be left for the Court of Appeals. Therefore, the judg- ment of the Court of Appeals is vacated and the cause remanded to that court for further consideration consistent with this opinion. McCORMICK, P.J., concurs in the result. Harold Lindsay DE FREECE, Appellant, Vu The STATE of Texas, Appellee. No. 502-92. Court of Criminal Appeals of Texas, En Banc Feb. 24, 1993 Defendant was- convicted of murder with deadly weapon following jury trial by the 63rd District Court, Terrell] County, George Thurmond, J. Defendant appealed. The El Paso Court of Appeals, 829 S.W.2d 251, affirmed. Defendant petitioned for discretionary review. The Court of Crimi- nal Appeals, Clinton, J., held that: (1) due process entitled defendant to appointment of psychiatrist to provide technical assis- tance after determination that insanity would be significant factor at trial; (2) fact that defense counsel was able to cross- examine state witness without psychiatric assistance did not make error harmless; and (3) subpoenaing treating psychiatrist to testify at trial did not satisfy defendant's due process rights. Reversed and remanded 848 SOu... WESTERN REPORTER, 2d SERIES McCormick, PJ., concurred in result. White, J., dissented. - 1. Constitutional Law = 268.2(3) Due process requires appointment of psychiatrist to provide technical assistance to accused, to evaluate Strength of ac. cused’s defense, to offer expert diagnosis at trial favorable to defense, and to identify weaknesses in state’s case where defen. dant’s sanity is significant factor at trial. U.S.C.A. Const.Amends. 5, 14; Vernon's Ann.Texas C.C.P. art. 46.03. 2. Costs €=302.4 That murder defendant's insanity was Significant factor at trial, entitling defen. dant to psychiatrist to assist in preparation and presentation of case, was established where acts of offense were fairly bizarre, State questioned defendant's sanity and competency to stand trial, defendant was in fact found to be incompetent to stand trial, treating psychiatrist believed defendant to be a schizophrenic, and defendant had Sig- nificant history of commitment in menta| health — facilities Vernon's Ann Texas C.C.P. art. 46.03; USCA. Const.Amends 5, 14. 3. Criminal Law 1166(1) Even if harmless error analysis ap- plied, failure to appoint psychiatrist to as- sist murder defendant in preparing defense was not harmless where assistance of ex pert to interpret voluminous medica! rec- ords could have assisted defense counsel in cross-€xamining state witness, only con- tested issue at trial was Sanity, and jury deliberated for five hours before convicting defendant. Vernon's Ann.Texas C.C_P. art. 46.03; U.S.C.A. Const.Amends 5, 14 4. Constitutional Law 268.23) Costs 302.4 Right to subpoena treating psychiatrist who diagnosed defendant as having schizo- phrenia did not satisfy defendant's due pro- cess mght to have expert assistance in pre- paring defense: psychiatrist was not pres- ent to help counsel! interpret hospital! rec- ords or examine conclusions of state's ex- pert for purposes of cross-€xamination Appendix A DE FREECE vy. STATE Tex. 15] Cite as 848 S.W2d 150 (Tex.Cr.App. 1993) Vernon's Ann.Texas C.C.P. art. 46.03; U.S.C.A. Const.Amends. 5, 14. _Mark Stevens, San Antonio, Martin Un- derwood, Comstock, for appellant. « Thomas F. Lee, Dist. Atty., Del Rio, Rob- ert Huttash, State’s Atty., Austin, for the State Before the court en banc. OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW CLINTON, Judge. Appellant was convicted by a jury of the offense of murder and his punishment as- sessed by the trial court at 60 years con- finement in the penitentiary. On appeal he argued that the trial court erred in failing to appoint an expert to assist him in evalua- tion, preparation, and presentation of his insanity defense, in violation of his consti- tutional rights to due process, equal protec- tion, effective assistance of counsel and compulsory process. The Eighth Court of Appeals disagreed, holding, inter alia, that appellant received al! the expert assistance he was constitutionally entitled to under the provisions of Article 46.03, § 3, V.A.C.C.P. De Freece v. State, 829 S.W.2d 251 (Tex.App.—El Paso 1992). In his peti- tion for discretionary review appellant reit- erates his claim that under Ake v. Okla- homa, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), he was entitled to more than just the “disinterested experts” pro- vided for by Article 46.03, § 3, supra. We granted the petition to address this claim. Tex.R.App.Pro., Rule 200(c)2) I. Appellant and the deceased, Juanita Rod- riguez, had a five month old son. On the morning of February 17, 1989, appellant went to the home of Juanita’s parents in Eagle Pass, where she and the baby were Staying. Appellant was told by Juanita’s Sister that Juanita and her parents and brother had left that morning to drive to Pecos. Based upon statements he claimed Juanita’s mother had made on pnor occa sions, appellant decided that the group in- tended to sell the baby in Pecos, and set out after them. He caught up with them on Highway 90 between Dryden and Sand- erson, and ran them off the road. Accord- ing to his testimony, at this time appellant heard voices he “couldn’t overcome” which commanded him to “kill, kill.” He forced Juanita into his car, where he stabbed her numerous times in the chest and abdomen, and then cut her throat. Texas Rangers apprehended him the next day a mile from the scene, and he readily confessed. The grand jury indicted him on March 20, 1989. On June 23, 1989, the State filed a mo- tion requesting that appellant be examined both for competency to stand trial and sani- ty at the time of the offense. Pursuant to Articles 46.02 and 46.03, V.A.C.C.P., the trial court ordered appellant sent to Vernon State Hospital “for observation, examina- tion and treatment.” There, Dr. D.F. Mar- tinez, a psychiatrist, diagnosed him as suf- fering from “Schizophrenia, Chronic, Un- differentiated Type.” Dr. F.E. Heynen, a clinical psychologist, opined that appellant was incompetent to stand trial, but that at the time of the offense he “had substantial capacity to appreciate the wrongfulness of his behavior and understood that his behav- ior was unlawful.” On September 11, 1989, a jury found appellant presently in- competent, but capable of attaining compe- tency in the foreseeable future; judgment to that effect was entered on September 13, 1989. Accordingly, appellant was re- turned to Vernon State Hospital, where he was re-evaluated every ninety days. See Article 46.02, §§ 4(g) & Sc), supra. On December 7, 1989, and again on March 12, 1990, the hospital reported that appellant had not yet attained competency, apparent- ly on recommendations from Dr. Martinez Finally, on June 1, 1990, the trial court was notified that appellant was competent to stand tral, although Dr. Martinez advised that “he should continue his present medi- cations consisting of neuroleptics and anti depressants.”’ On August 20, 1990, counsel for appel- lant filed a motion requesting the appoint ment of a psychiatric expert to assist in 152 Tea preparing and presenting his insanity de The tnal court took the motion un On September 18, 1990, counsel filed another motion urging his in fense der advisement competency to try the case without expert assistance, and essenually requesting a A heamng was held dunng which counsel for appellant argued that the tna! court had misconstrued his August 20 motion as a request for a specific expert. Counsel clarified that he sought no particu- lar expert, but simply any competent psy- chiatrist who continuance “would be a member of the defense team, would be available for helping preparation of the case, preparation for cross examination, deciding which tests were needed, range and form, that sort of thing, as well as being present during trial to help the defendant.” The tnal court stated, inter alta, that ‘I've already appointed a psychiatrist to conduct an evaluation, and I don’t feel I have to Instead, the court assured appellant's counse! that he would be afforded an opportunity to interview Dr Heynen, who was scheduled to testify for the State, pmor to cross-examining her appoint another one[.]’’ Counsel for appellant complained that he {did} not believe the ability to speak to this one doctor solves the problem, be cause number one, she's already on rec- ord in wnting as supporting the State's position, and number two, she will give no assistance in how to cross-xamine her We think that we still need the expert on the defense team.” The trial court denied both appellant's mo tions Trial commenced that same day. Other than his testimony that he had heard voices commanding him to “kill, kill,” appellant presented no direct evidence to show he was insane at the time of the offense. In rebuttal the State put Dr. Heynen on the witness stand to testify that any voices appellant may have heard would not be “sufficiently compelling to cause him to forget that this was a wrongful thing to do.” After reading a number of reports from other clinics, conducting a battery of tests, and consulting with other staff mem S48 SOUTH WESTERN REPORTER, 2d SERIES bers at Vernon State Hospital, she conclud? ed that appellant had known the differenge between mght and wrong when he commit> ted the offense. See V.T.C.A. Penal Code’ § 8.01. After this testimony the trial court adjourned for the day, and Dr. Heyney assured the tral court that she would be available to consult with appellant's couns sel The next morning counsel took Dr Hey- nen on cross-examination. She agreed that appellant's records from his stay at Verno State Hospital “weigh several pounds” Out of the presence of the jury appellant then renewed his motion for expert assis- tance to help him interpret those volumi- nous records with a view to cross-examin- ing Dr. Heynen. Once again the trial court asked counsel] Do you want to talk with (Dr. Hey- nen} some more if you have problems, because I think the lady would be happy to go over all this with you [DEFENSE COUNSEL} my greatest need is to be able to impeach her tesumony and to discredit it, and of not available for that That's what I need for cross examina- tion, so I see no benefit in talking to her. THE COURT: I thought you said you were incompetent and couldn't under- stand these records. [DEFENSE COUNSEL]: I am THE COURT: I'm offering, if she can help you with any terms or—she said she would stay over yesterday [DEFENSE COUNSEL): My problem is to point out where she’s wrong, Your Honor. I don’t believe she's available for that.” The tnal court again denied the motion Your Honor, course, she's As cross-examination continued, Dr. Hey- nen verified that Dr. Martinez had diag- nosed appellant as suffering from undiffer- entiated schizophrenia, organic brain syn- drome, and extreme psychosocial stressors. Dr. Heynen admitted that she herself had found that appellant had “diffuse organic brain damage.’ She believed his earlier history of commitment to mental hospitals, however, was “generally because of drug abuse.’ Disagreeing with Dr. Martinez’ DE FREECE v. STATE Cite as 848 S.W2d 150 (TexCr App revaiuauon of appellant as schizophrenic, Dr. Heynen opined that her own diagnostic ygkills “far exceed those of Dr. Martinez.’ She acknowledged that another doctor had earlier found in appellant “the capacity . decompensate and to be a danger to nimself and others.” ever, that this doctor did not “give any She pointed out, how reason why he thought he had decompen sated.”” On redirect examination Dr. Hey- nen noted several typical characteristics of schizonvhrenia (e.g., incoherence, impaired personal hygiene, “flat affect’) that appel lant did not manifest. During final argument appellant's coun- sel conceded that the evidence showed ap- pellant caused the death of Rodriguez. Emphasizing appellant's history of mental health commitments and his apparently de lusional belief that Rodmguez’ family in tended to sell his baby, counsel argued that the jury should find that when appellant killed Rodriguez, he did not appreciate the wrongfulness of his conduct. In rebuttal the State stressed Dr. Heynen’s testimony that appellant could distinguish mght from offense After deliberating for five hours, the jury wrong when he committed the returned a guilty verdict The court of appeals held that failure of the trial court to grant appellant's persis nt motions to appoint an independent psy chiatric expert to assist him was not error The reasoning of the court of appeals was First, the that the trial court had appointed ‘‘disinterested experts” Article 46.03, which statutory scheme has been found by the United States Fifth Circuit Court of Appeals to satisfy constitutional require- ments of Ake v. Oklahoma, supra.' See Granviel v. Lynaugh, 881 F.2d 185, at 191-92 (CA5 1989), cert. denied, 495 U.S 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990) Second, the court of appeals believed that by his “admirable” cross-examination of threefold, as we understand it court of appeals observed with in accordance supra, Dr. Heynen, counsel for appellant succeed- ed in impeaching her without the benefit of Oklahoma was decided as a That the statuto under adequate response to l. Of course, Ake + matter of federal due process ry scheme Ake would not seem an meets constitutional muster Tex. 153 State, su Finally, the court of appeals faulted appellant for not subpoenaing Dr Martinez, thereby obtaining what would 1993) expert assistance. De Freece v pra, at 255 hkely have been favorable testimony with out putting the tral court to the necessity Id., at 256. We will address each of these reasons of appointing an additional expert in turn I] In treating the court of appeals’ first reason for rejecting appellant’s Ake claim, we confront the question whether examina tion by “disinterested experts” at Vernon State Hospital, pursuant to Article 46.03, § 3(a), supra, and testimony from at least one of those experts at tral about conclu drew from that examination, due Appellant sions she meet the Ake does not claim he was deprived of the op were sufficient to process minimum announced in portunity to be examined by a competent expert on the question of Ake shown his Sanity, aS was He does claim, however, that, having sanity would be a significant factor at his tmal, he should have been provided an expert of the court’s choosing ) help him evaiuate and prepare his sanity to help him t , t defense, and meaningfully confront expert »stimony adduced by the State e testimony add 1 by the Stat W agree, and hold that the trial court erred in denying him that assistance Our analysis begins with a brief over view of Article 46.03, § 3(a), supra, and the Fifth Lynaugh, supra, that the neutral ‘court's Circuit's conclusion in Granvel 2 expert’”’ it provides is sufficient to comply with Ake Ake itself, followed by an examination of Next we review the decision in what other jurisdictions have held regard ing the scope of psychiatric assistance that Ake requires. Finally we explain our own understanding of the scope of psychiatric assistance under Ake, and apply that un derstanding to the facts of the instant case appellant's claims that he was also denied equal protection, effective assistance of counsel and compulsory process 154. Tex. Article 46.03 Before 1967 there was no express au- thority in Texas for appointing an expert to examine a criminal accused to determine either competency to stand trial or sanity at the time of the offense. For that reason this Court held that trial courts did not abuse their discretion in failing to do so. Elizey v. State, 158 Tex.Cr.R. 604, 259 S.W.2d 211 (1953); Crain v. State, 394 S.W.2d 165 (Tex.Cr.App.1964). Nor did this Court perceive that the federal consti- tution required even so much as a state- sponsored examination for sanity, much less an expert for the express purpose of assisting the defense. Crain v. State, su- pra; Bush v. State, 172 Tex.Cr.R. 54, 353 S.W.2d 855 (1962), citing United States ex rel. Smith v. Baldi, 344 US. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953). By way of amendment to Article 46.02, supra, adding § 2(f)(1), the Legislature provided for the first time in 1967 that: “(t]he court may, at its discretion appoint disinterested qualified experts to exam- ine the defendant with regard to his pres- ent competency to stand tral and to his sanity, and to testify thereto at any tnal or hearing in connection to the accusa- tion against the accused.” Acts 1967, 60th Leg., ch. 659, p. 1750, § 33, eff. August 28, 1967. In 1975 the Legisla- ture enacted Article 46.03, supra, and placed the provision governing appointment of experts to determine sanity there, apart from provisions relating to competency to stand trial, which remained in Article 46.02, supra. See Acts 1975, 64th Leg., ch. 415, p. 1095, eff. June 19, 1975. As of the time of trial in this cause, § 3(a) of Article 46.03, supra, read: 2. Bush ultimately obtained relief in a federal habeas corpus petiuon, Bush v. McCollum, 231 F.Supp. 560 (N.D.Texas 1964), aff'd, 344 F.2d 672 (CAS 1965), but not before the cause on original appeal was remanded once by the Unit- ed States Supreme Coun, Bush v. Texas, 372 U.S. 586, 83 S.Ct. 922, 9 L.Ed.2d 958 (1963), and his claim once again rejected by this Court in Bush v. State, 372 S.W.2d 683 (Tex.Cr.App.1963). 3. But failure of the trial court to appoint a psychiatric expert is subject to the same abuse of discretion standard by which we measure any other failure to appoint an expert under 848 SOUTH WESTERN REPORTER, 2d SERIES “If notice of intention to raise the in. sanity defense is filed urider Section 2 of this article, the court may, on its own motion or motion by the defendant, his counsel, or the prosecuting attorney, ap. point disinterested experts expenenced and qualified in mental health and men. tal retardation to examine the defendant. with regard to the insanity defense and to testify thereto at any trial or hearing on the issue.”’ Under § 3(d) of Article 46.03, then as now, the appointed expert or experts must sub- mit a written report to the tnai court with- in thirty days detailing their “observations and findings pertaining to the insanity de fense.”” The trial court is required to fur- nish a copy of the report to both the State and the defendant. Accordingly, we have characterized experts under these provi- sions as “not appointed by the court as the expert of the State or the defense, but [as] the court's disinterested witness.”” Gran- viel v. State, 552 S.W.2d 107, at 115 (Tex. Cr.App.1976). However, § 3(f) of Article 46.03, supra, requires the trial court to provide ‘‘a reasonable opportunity” for the accused ‘‘to be examined by a psychiatrist or other expert of his own choice[.]" While § 3(f) does not speak to the question whether, if the accused cannot afford an expert “of his own choice,” one must be provided for him, we have indicated that counsel may obtain an expert to examine his indigent client by operation of Article 26.05, V.A.C.C.P. Von Byrd v. State, 569 S.W.2d 883, at 896 (Tex.Cr.App.1978).* In Granmel v. Lynaugh, supra, the pet- tioner challenged the constitutionality of the Texas statutory scheme under Ake v. Article 26.05, supra. Stoker v. State, 788 S.W.2d 1, at 16-17 (Tex.Cr.App.1990), Hammett v. State, 578 S.W.2d 699, at 705-707 (Tex.Cr.App. 1979). And presumably counsel must have al- ready “incurred” the expense of an independent examination of his client “with prior court ap proval” before Article 26.05 authorizes compen- sation. Cf. Myre v. State, 545 S.W.2d 820, at 826 (Tex.Cr.App.1977) (under former incarnation of Article 26.05, supra, defendant must show he “incurred” expense before he can be compensat ed); Eggleston v. State, 422 S.\W.2d 460, at 463- 64 (Tex.Cr.App.1968) (same). DE FREECE vy. . | SATE Tex. 155 Cite as 848 S.W2d 150 (Tex.Cr.App. 1993) Oklahoma, supra. The trial court had ap- pointed a “disinterested expert” as per the statute to examine Granviel prior to tmnal, put refused to appoint another psychiatric expert at Granviel’s request whose report would be unavailable to the State. The Fifth Circuit denied relief, holding that the Texas procedure was sufficient to comply with Ake, essentially because it believed that “{a]vailability of a neutral expert pro- vides defendants with ‘the raw materials integral to the building of an effective de- fense.’" 881 F.2d at 192, quoting Ake v. Oklahoma, 470 U.S. at 77, 105 S.Ct. at 1093, 84 L.Ed.2d at 62. We do not think careful consideration of Ake, with its em- phasis on due process in the context of an adversarial system, bears this view out. Ake v Accused of capital murder, Glen Burton Ake displayed such odd behavior at his arraignment that the trial court ordered an examination to decide whether he should be observed to determine his competency to stand trial. The psychiatrist who examined Ake concluded he was a paranoid schizo- phrenic, and he was committed to a state hospital, where he was found incompetent Six weeks later he was found to have re- gained competency, subject to continued treatment with an antipsychotic drug, Tho razine. Prior to trial his attorney indicated he would raise the defense of insanity, and requested psychiatric assistance, since Ake was indigent. Even though the state hos- pital had made no determination of Ake’s sanity at the time of the offense, the trial court denied his request. “As a result there was no expert testimony for either side on Ake's sanity at the time of the offense.” Ake v. Oklahoma, 470 US. at 72, 105 S.Ct. at 1091, 84 L.Ed.2d at 59.‘ The Oklahoma Court of Criminal Appeals affirmed Ake’s conviction, holding that the State had no obligation to provide psychiat- ric services to indigents in capital cases The United States Supreme Court re- versed Ake’s conviction. In its opinion the Court began by reaffirming the principle that due process requires that the indigent Oklahoma 4. Emphasis in the original. All other emphasis accused in a criminal trial must be equipped with the “basic tools’’ to ensure “a proper functioning of the adversary pro- cess[.]"" /d., 470 U.S. at 77, 105 S.Ct. at 1093, 84 L.Ed.2d at 62. Deciding whether a psychiatric expert was necessary to that end, the Court considered three factors bor- rowed from cases involving questions of procedural due process, vtz. “The first is the private interest that will be affected by the action of the State. The second is the governmental! interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute pro- cedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” Id. The accused's interest in maintaining the institutional presumption of innocence, the Court observed, “is obvious.” The State, on the other hand, has more than the ordinary adversarial interest in prevailing; it has a concomitant interest in the fairness of the proceeding and the accuracy of the result. Moreover, because most states al- ready provide some level of psychiatric as- sistance to the accused, that burden cannot be prohibitive. In these lights the Court concluded that the State's interest “Is not substantial{.]" Jd, 470 U.S. at 79, 105 S.Ct. at 1094, 84 L.Ed.2d at 63-64 Assessing the third factor, the Court be- gan “by considering the pivotal role that psychiatry has come to play in criminal proceedings.” /d “In this role, psychiatrists gather facts, through professional examination, inter- views, and that they will share with the judge and jury; they ana- lyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior, and they offer opinions about how the defendant's mental! condition might have affected his behavior at the ume in ques- tion. They know the probative questions to ask of the opposing party’s psychia elsewhere, supplied unless otherwise indicated 156 Tex. 848 SOUL. ‘trsts and how to interpret their an- swers.”’ Id., 470 US. at 80, 105 S.Ct. at 1095, 84 L.Ed.2d at 64. Thus, psychiatric experts may assist lay judges and jurors to make an informed decision about the sanity of the accused at the time of the offense. Because psychiatry is not “an exact sci- ence,’ however, Jumes remain the “primary factfinders,”’ and, the Court suggested, it is important that the jury hear “the psychia- trists for each party” to equip it to make as informed a decision as possible. /d., 470 U.S. at 81, 105 S.Ct. at 1095, 84 L.Ed.2d at 65. To avoid the rsk of an inaccurate verdict, the Court concluded, an indigent accused must be provided an expert “‘to conduct a professional examination on is- sues relevant to the defense, to help deter- mine whether the insanity defense is via- ble, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses[.]"" /d., 470 U.S. at 82, 105 S.Ct. at 1096, 84 L.Ed.2d at 65 The Court concluded “We therefore hold that when a defen- dant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at tnal, the State must, at a minimum, assure the defen- dant access to a competent psychiatnst who will conduct an appropriate examina- tion and assist in evaluation, preparation, and presentation of the defense. That is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal lik- ing or to receive funds to hire his own. Our concern is that the indigent defen- dant have access to a competent psychia- trist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this night.” /d., 470 U.S. at 83, 105 S.Ct. at 1096, 84 L.Ed.2d at 66.5 Persuasive Authonty Commentators have noted an “ambigu- ity” in Ake, a seeming internal contra- $. This Court does not understand the holding of Ake to be limited to the context of capital of VESTERN REPORTER, 2d SERIES diction between the express right to a sin- gle competent psychiatric expert not of the accused's choosing, on the one hand, and indications throughout the opinion, on the other, that the accused is entitled to an expert who will participate with him as a partisan in the case. E.g., Note, Due Pro- cess and Psychiatric Assistance: Ake y. Oklahoma, 21 Tulsa LJ. 121, at 143-46 (1985); Note, Expert Services and the Indi- gent Criminal Defendant: The Constitu- tional Mandate of Ake v. Oklahoma, 84 Mich.L. Rev. 1326, at 1345-57 (1986). Some courts have targeted the first aspect of Ake to hold that a single “neutral’’ expert is all the State need supply to ensure prop- er adversarial functioning. Thus, many courts have denied Ake claims where the accused has received an examination in a state mental institution pursuant to court order, holding that the state-sponsored ex- amination met all due process require ments. E.g., Beard v. State, 306 Ark. 546, 816 S.W.2d 860 (Ark.1991); State v. Hoo- pu, 68 Haw. 246, 710 P.2d 1193 (1985); Djad: v. State, 72 Md.App. 223, 528 A.2d 502 (1987); Willie v. State, 585 So.2d 660 (Miss.1991); State v. Hix, 38 Ohio St.3d 129, 527 N.E.2d 784 (1988): State v. Ind- vik, 382 N.W.2d 623 (N.D.1986). In each of these cases, however, the state institution had found no reason to doubt the defen- dant’s sanity, and therefore the court also found the defendant had not shown insani- ty would be a significant factor at trial in any event. Many other courts have held similarly that, where a state-sponsored ex- amination reveals no likelihood of insanity at the time of the offense, a defendant has not met the threshold requirements for re- lief under Ake. E.g., Simmons v. Com- monwealth, 746 S.W.2d 393 (Ky.1988); State v. Barrett, 577 A.2d 1167 (Me.1990); State v. Robinson, 327 N.C. 346, 395 S.E.2d 402 (1990); Tuggle v. Common- wealth, 230 Va. 99, 334 S.E.2d 838 (1985); State v. Newcomer, 48 Wash.App. 83, 737 P.2d 1285 (1987); Glass v. Blackburn, 791 F.2d 1165 (CA5 1986); United States v. Fazzini, 871 F.2d 635 (CA7 1989); Cart- fenses. See McBnde 1 (Tex.Cr._App.1992) State, 838 SW.2d 248 DE FREECE v. Cite as 848 S.W2d 150 (Tex.Cr App. 1993) wright v. Maynard, 802 F.2d 1203 (CA10 1986); Bowden v. Kemp, 767 F.2d 761 (CA11 1985) Every court that has found the defendant did make an adequate show- ing that insanity would be a significant factor, however, has also held that Ake entitled him to more than an examination and testimony, if favorable, from a neutral psychiatric expert—every court, that is, ex- cept the Fifth Circuit in Granviel v. Ly- naugh, supra. In Lindsey v. State, 254 Ga. 444, 330 S.E.2d 563 (Ga.1985), evidence that the de- fendant had a history of mental problems, and had been diagnosed as a paranoid schizophrenic and prescribed anti-psychotic medications, was held sufficient to show his sanity at the time of the offense would be a significant factor at trial. The Su- preme Court of Georgia therefore reversed the conviction on authority of Ake. Re- sponding to the State’s contention that ac- cess to and the opportunity to confer with a neutral expert would be enough to satisfy Ake, the court concluded that “in addition to examining the defendant, the psychia- trist must assist the defense by aiding de fense counsel in the cross-examination and rebuttal of the state’s medical experts.” Id., 330 S.E.2d at 567. See also Holloway v. State, 257 Ga. 620, 361 S.E.2d 794 (Ga 1987). In Palmer v. Indiana, 486 N.E.2d 477 (Ind.1985), the Supreme Court of Indiana examined its statutory scheme for provid- ing expert examination for insanity claim- ants. Under Indiana law, upon notice of an insanity defense, the trial court is automat- ically to appoint at least two medical ex perts, one of whom must be a psychiatnst, to examine the defendant. The court rec- ognized that one requirement of Ake is that defense counsel be provided with an expert with whom to consult “about the validity of observations being made by oth- er witnesses.” Jd. at 482. Accordingly, the court directed that its statutory scheme be implemented with the understanding that the appointed psychiatrist “‘be avail- able for consultation with counsel during preparation for trial.” /d TATE Tex. 157 The defendant in State v. Gambrell, 318 N.C. 249, 347 S.E.2d 390 (1986), was found to be in need of psychiatric care, and was committed to a state hospital for determi- nation of his capacity to stand trial. The examining psychiatrist's initial impression was that the defendant was “probably schizophrenic,” and he was medicated with psychotropic drugs. Ultimately the psychi- atrist found him both competent and sane. Nevertheless, in view of the initial skepti- cism about Gambrell’s mental condition, along with some indication of mental illness in his family history, the Supreme Court of North Carolina concluded he had shown that his sanity would be a significant factor at trial. Holding that a state-sponsored psychiatric expert was acceptable under Ake, the court reversed the conviction ne- vertheless because the defendant had ob- tained only an examination by the state psychiatrist, but had received no aid in “evaluating, preparing, and presenting his defense at both the guilt and sentencing phases.” /d., 347 S.E.2d at 395 The federal courts of appeals have also been inclined to hold that defendants who meet the threshold showing of Ake are entitled to more than a “neutral” testifying expert. Smith v. McCormick, 914 F.2d 1153, at 1158-59 (CA9 1990). In United States v. Sloan, 776 F.2d 926 (CA10 1985), the trial court appointed a psychiatmst to report to the court after an examination to determine competency and sanity of the defendant. The examiner reported that Sloan “suffered from a borderline schizoid personality,”’ but that he was both compe- tent and sane. Sloan requested a defense psychiatrist to help him understand the ex amining psychiatrist's report and to pre- pare to cross-examine him at trial, which was denied. The Court of Appeals re- versed the conviction, holding that without the aid the defendant had requested, he was deprived of due process. Along the way the Court of Appeals observed, ‘The essential benefit of having an expert in the first place is denied the defendant when the services of the doctor must be shared with at 929. See also F.2d 826 the prosecution.” /d., United States 1 Crews, 781 158 Tex. (CA10 1986); Liles v. Saffle, 945 F.2d 333 (CA10 1991). In Cowley v. Stricklin, 929 F.2d 640 (CA11 1991), the state trial judge had com- mitted the defendant to mental institutions on three occasions before he was prosecut- ed for sexual assault. An earlier diagnosis found he suffered from schizophrenia, but at the state mental health facility he was found competent to stand trial and mental- ly responsible for the offense. The court refused Cowley’s request for an appointed exnert, despite representations from a psy- chologist who had volunteered his services and examined Cowley briefly, that he was still schizophrenic. On federal habeas cor- pus, Alabama argued that because the de- fendant had had access to the reports of the state psychiatrist, and help from the volunteer psychologist, there was no Ake violation. The Court of Appeals rejected these contentions, observing that the State's psychiatrist “did not assist in Cow- ley’s trial preparation and obviously could not have assisted Cowley in his own cross- examination” /d., at 644. Moreover, the psychologist had not interviewed Cowley in any depth in ten years, and had not been able to form an opinion as to his sanity at the time of the offense. Cowley's convic- uuon was reversed and remanded to the State court for retrial or release. See also Buttrum v. Black, 721 F.Supp. 1268 (N.D.Ga.1989), affd, 908 F.2d 695 (CA1]1 1990) Thus, it is true that some jurisdictions have said, essentially in dicta, that the stat- utory provision of a single neutral psychia- trist to service both parties and the court is sufficient to meet the due process mini- mum of Ake.* However, it appears that, Grannel v. Lynaugh, supra, notwithstand- ing, the greater weight of authority holds 6. The State argues that denial of petition for writ of certiorari in Granviel v. Lynaugh, supra, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990), shows that the Supreme Court endorses the view that examination by a neutra! psychia. trist satisfies Ake. But the denial of a petition for writ of certiorari has no more precedential value than does the refusal of a petition for discretionary review in this Court Eg, Hopfmann v. Connolly, 471 US. 459, 105 S.Ct 2106, 85 L.Ed.2d 469 (1985). Nor do two other 848 SOUTh wESTERN REPORTER, 2d SERIES otherwise. And, in our view, with good reason. Ake and Article 46.03 Ours is an adversarial system of criminal justice, not an inquisitorial one. Either mode of inquiry is aimed at assessing the truth. However, the adversarial mode! rests on the assumption that each party to a dispute, motivated by self-interest, will develop his position to the greatest extent possible within the boundaries of the rules of evidence and procedure, thus providing the factfinder an optimal vantage from which to gauge all relevant facts and make an informed decision on the merits. In Ake the Supreme Court reiterated that where the defendant is indigent, due process re- quires that the State guarantee he be at least minimally equipped to participate meaningfully in this adversarial process. Where sanity of the indigent accused wil! be a significant factor at trial, psychiatry has come to play a “pivotal role.” 470 US at 79, 105 S.Ct. at 1094, 84 L.Ed.2d at 64 But since psychiatry “is not ... an exact science,’ equally competent practitioners confronted with the same raw data often disagree in their diagnoses in an area that is “inevitably complex and foreign” to law- yers and juries alike. 470 U.S. at 81, 105 S.Ct. at 1095, 84 L.Ed.2d at 64-65. Al- though psychiatric testimony is undoubted. ly useful in the resolution of many issues in the adversary trial context, including sanity at the time of the offense: “[njone of these issues ... can be ad- dressed by a psychiatrist with absolute certainty. Thus, to expect the ‘objective’ opinion of an amicus expert to yield ‘the answer’ in a particular case is unrealistic. Unless the choices made by the psychia- trist in the establishment and proof of cases cited by the State in which petitions for writ of certiorari were denied, wiz’ Glass v. Blackburn, 791 F.2d 1165 (CAS 1986), cert. den., 481 US. 1042, 107 S.Ct. 1985, 95 L.Ed.2d 824 (1987), and State v. Vickers, 159 Ariz. 532, 768 P.2d 1177 (1989), cert. den., 497 U.S. 1033, 110 S.Ct. 3298, 111 L.Ed.2d 806 (1990), even stand for the proposition, as we understand them, that examination by a neutral psychiatrist is all that due process requires ' DE FREECE v. STATE Tex. 159 Cite as 848 S.W2d 150 (Tex.CrApp. 1993) his or her hypothesis are open to in- formed scrutiny, the psychiatrist’s con- clusions are of limited value. And, un- less each party has access to psychiatric assistance in preparing and directing this scrutiny, it cannot be expected that the scrutiny will be adequately informed. Indeed, each party must have the oppor- tunity to explore and explain the relevant psychiatric data in a case if the conclu- sions drawn from these data are properly to be understood by the judge or the jury and the ‘truth’ is to be most closely ap- proximated. This is the teaching of Ake v. Oklahoma.” Showalter & Fitch, Objectivity and Advoca- cy in Forensic Psychiatry After Ake v. Oklahoma, 15 J. Psychiatry & L., 177, at 186 (1987). Because psychiatric evidence is at once esoteric and uncertain, the indigent accused needs a psychiatrist, inter alta, “to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witness,” if he is to present the factfinder with a perspective broad enough to ensure an informed reso- lution of the sanity question. 470 U.S. at 82, 105 S.Ct. at 1096, 84 L.Ed.2d at 65. Otherwise the risk of error is intolerably high, and due process wil! be offended. In Granviel v. State, supra, at 115, we called the ‘disinterested experts” contem plated by former Article 46.02, § 2(f)(1), now Articles 46.02, § 3(a) & 46.03, § 3(a), “the court’s ... experts.” See also Von Byrd v. State, supra, at 896. We reject the notion that a “court’s expert” necessarily fulfills the role of psychiatric assistant to the indigent accused envisioned by Ake. Such a “court’s expert’’ may well serve an important function in identifying whether sanity will be a significant factor at trial. But in an adversarial trial itself, judge and jury necessarily play a passive, neutral role. In that context the phrase “court’s expert” is an oxymoron. It is the parties, not the judge, who supply evidence from which the jury is to distill the truth. And while it is true, as the Fifth Circuit echoes in Granviel v. Lynaugh, supra, at 191, that “{a) psychiatrist's examination is not an adversary proceeding{,}" the trial at which the State adduces evidence of that exami- nation most certainly is {1] In an adversarial system due pro- cess requires at least a reasonably level playing field at trial. In the present con- text that means more than just an examina- tion by a “neutral” psychiatrist. It also means the appointment of a psychiatnst to provide technical assistance to the accused, to help evaluate the strength of his de fense, to offer his own expert diagnosis at trial if it is favorable to that defense, and to identify the weaknesses in the State’s case, if any, by testifying himself and/or preparing counsel to cross-examine oppos- ing experts. We recognize that the ac- cused is not entitled to a psychiatrist of his choice, or even to one who believes the accused was insane at the time of the of- fense. Ake makes this much clear. But even a psychiatrist who ultimately believes the accused was sane can prove invaluable by pointing out contrary indicators and ex- posing flaws in the diagnoses of State's witnesses. None of this is to say that Article 46.02, § 3(a), supra, is unconstitutional. As in other jurisdictions, a preliminary examina- tion by “disinterested experts’ under this provision may show insanity 1s not to be a significant factor in the case. In that event the due process right articulated in Ake would not be triggered. Where that examination shows a viable insanity claim, however, due process does not end there. The accused must be given the means to advance that claim at trial. Thus, more than the appointment of “disinterested ex- perts” under Article 46.03, supra, is re- quired. Once it is shown that insanity will be a significant factor at trial, the tnal court abuses its discretion in failing to ap point, or to give “pnor .. approval” to “reasonable expenses incurred” by counsel for the accused to obtain, a competent psy- chiatrist to assist in the evaluation, prepa- ration and presentation of his insanity de- fense. Article 26.05(a), supra Application of Ake {2] The State does not contest that in this cause appellant demonstrated to the 160. Tex trial court that insanity would be a signifi- cant factor at trial, as indeed it turned out to be. The facts of the offense itself are fairly bizarre, as the trial court would have been aware at least by the time he denied appellant's latest request for expert assis- tance. The State itself questioned both his sanity and his competency to stand trial, and he was indeed found to be incompetent. He did not attain competency for another eight months, and then, only subject to continued medication. While the only opin- ion expressed prior to trial as to his sanity at the time of the offense, from the clinical psychologist, Dr. Heynen, is that he was sane, the treating psychiatrist, Dr. Mar- tinez, believed him to be schizophrenic. He had a significant history of commitment in mental health facilities. These facts con- duce to show, no less than ti:ose in Ake, 470 U.S. at 86, 105 S.Ct. at 1098, 84 L.Ed.2d at 68, that insanity was not only a signifi- cant factor at trial, it was the only contest- ed issue. See also, e.g., Gambrell v. State, supra; United States v. Sloan, supra; Cowley v. Stricklin, supra. And in fact counsel conceded in final argument that his chent caused the death of Rodriguez, argu- ing only that he had not perceived his con- duct to be wrong. Counsel for appellant did not ask for anything more than he was minimally enti- tled to under Ake. He did not request a particular psychiatnst, but only a single competent one. Nor did he seek a psychia- tnst who would necessarily testify that his client was insane at the time of the offense. He simply sought expert guidance in evalu- ating the strength of appellant's defense, presenting it in the best possible hght to the jury, and, in particular, in scrutinizing the tesumony of Dr. Heynen, the only ex- pert opinion then available that directly addressed the question of appellant's abili- ty to distinguish right from wrong. Even a neutral ‘“‘court’s expert” cannot effective- ly prepare counsel to cross-examine her- self. Cowley v. Stricklin supra; Buttrum v. Black, supra. We hold that the tnal court erred in denying appellant’s request for the appointment of a psychiatnst to aid 7. Again, we do not suggest that Ake guarantees appointment of an expert who will testify that 848 SOUT:. WESTERN REPORTER, 2d SERIES in the preparation and presentation of his insanity defense. Ill. {3} The court of appeals believed coun- sel was able to conduct an ‘“‘admirable” cross-xamination of Heynen without the benefit of psychiatric assistance. As appel- lant notes, this smacks of a harmless error analysis. But in Ake itself the Supreme Court reversed the conviction and remand- ed the cause for new trial without conduct- ing a harm analysis. See Vickers v. An- zona, 497 U.S. 1033, at 1036, 110 S.Ct. 3298, at 3300, 111 L.Ed.2d 806, at 809 (1990) (Marshall, J., dissenting to denial of petition for writ of certiorari). In any event, we would not conclude that the error in failing to appoint a psychiatrist to con- sult with counsel was harmless error in this cause. First, help in preparing to cross-examine State’s witnesses is not the only function of an appointed psychiatrist contemplated by Ake. Even if it were, that counsel did an ‘‘admirable”’ job in cross- examining Heynen does not mean he could not have done an even more effective job with the aid of an expert to interpret the voluminous data from Vernon State Hospi- tal from which her opinion was derived. Especially considering that, although the only contested issue at trial was sanity, the jury nevertheless deliberated for five hours before convicting appellant, we could not say beyond a reasonable doubt that the failure to appoint the requested expert did not contribute to the verdict in this cause IV. {4] Finally, the court of appeals be- lieved appellant could have obtained all the succor to which he was constitutionally en- titled by subpoenaing Dr. Martinez to testi- fy at trial. We disagree. To begin with, once it is shown that insanity will be a significant factor at trial, more than just favorable psychiatric testimony—if that is even available—is required to fully satisfy Ake.’ Martinez was not present to help the accused is insane. But once it is shown that insanity will be a significant factor at trial, IKNER v. S1. Tex. 161] Cite as 848 S.W2d 161 (Tex.Cr App. 1993) counsel interpret the hospital records or critically examine Heynen’s conclusions for purposes of cross-examining her (even had he been inclined to do so, considering that they were colleagues). For counsel to have elicited an opinion from Martinez before trial, without first obtaining his appoint- ment or the provision of funds to hire him as a defense expert, would have risked generating another witness for the State, should Martinez’ ultimate opinion on the issue of insanity prove to be unfavorable.® That Martinez believed appellant to be a schizophrenic was already before the jury. We cannot agree that counsel’s failure to risk calling Martinez to the witness stand should operate to nullify his right under Ake to the aid and consultation of a psychi- atric expert. See Cowley v. Stricklin, su- pra, at 644-45; State v. Moore, 321 NC. 327, 364 S.E.2d 648, at 653-54 (1988). V. We therefore reverse the judgment of the court of appeais and remand the cause for new trial.’ McCORMICK, P.J., concurs in the resuit WHITE, J., dissents appellant is entitled to the appointment of a psychiatric expert. If the appointed psychiatrist believes the accused was insane, he may certain ly so testify. But even if he does not, he must be made available to consult with counsel, to interpret records, to prepare counsel to cross examine State's witnesses, and generally to help present appellant's defense in the best light 8. Until such time as Martinez may be appointed by the court as a defense expert, he would re main, under Article 46.03, supra, a “court's ex pen,” and as such, not subject to the attorney client privilege. Granviel v. State, supra, at 115 But had the trial court appointed him as a James Montgomery IKNER, Appellant, Vv. The STATE of Texas, Appellee. Nos. 007-93, 008-93. Court of Criminal Appeals of Texas, En Banc. March 3, 1993. Discretionary Review Refused March 3, 1993. Defendant was convicted in the County Criminal Court at Law No. 10, Harris County, Sherman Ross, J., of resisting ar- rest and driving while intoxicated. Petition for review was granted. The Court of Appeals, 848 S.W.2d 162 reversed. State petitioned for discretionary review. The Court of Criminal Appeals, Baird, J., held that Court of Appeals erred by not address- ing state’s argument that defendant had not preserved error for appellate review. Vacated and remanded. Criminal Law ©1028 Court of Appeals erred by not address- ing state’s argument that defendant, who was charged with resisting arrest and driv- ing while intoxicated, had not preserved error for appellate review. Allen C. Isbell, on appeal only, Houston, for appellant John B. Holmes, Jr., Dist. Atty., Dan McCrory and D. Craig Hughes, Asst. Dist Attys., Houston, Robert Huttash, State's Atty., Austin, for the State defense expert, Martinez would have been a “representative of the lawyer,” Le, “one em ployed by the lawyer to assist the lawyer in the rendition of professional legal services[.]” Tex R.Cr.Evid., Rule 503(a)(4). As such he could be prevented “from disclosing any fact which came to [his] knowledge by reason of the attorney client relationship.” Tex.R.Cr.Evid.. Rule 503(b) 9. In view of this disposition, we need not ad dress other matters in the court of appeals’ opinion. See n. 1, ante. i MARK STEVENS ; LAWYER ‘ wih LIFE Bro September 8, 1993 RECEIVED SEP -9 1993 Mr. William K. Suter mee Payers Clerk OFFile Ur inz CLERK United States Supreme Court SUPREME COURT, U.S. lst Street N.E. Washington, D.C. 20543 Re: Respondent’s Brief In Opposition, State of Texas vs. Harold Lindsay Defreece, No. 92-1882 Dear Mr. Suter: Enclosed please find: (1) An original and twelve copies of Respondent’s Brief In Opposition; (2) An original and twelve copies of Motion For Leave To Proceed In Forma Pauperis with Affidavit; (3) Appearance Form. I would like these documents filed in the above styled and numbered cause. Please do not hesitate to contact me if you have any questions. Sincerely Mark Stéevehs MS/cr APPEARANCE FORM SUPREME COURT OF THE UNITED STATES NO. 92-1882 THE STATE OF TEXAS VS. HAROLD LINDSAY DEFREECE The Clerk will enter my appearance as Counsel of Record for Respondent, Harold Lindsay Defreece. I certify that I am a member of the Bar of the Supreme Court of the United States: f Signature: Name: Mr. Mark Stevens Firm: Law Offices of Mark Stevens 310 S. St. Mary’s Street Tower Life Building, Suite 1505 San Antonio, TX 78205 (210) 226-1433 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0913%3A2. Public record. Not legal advice.