Opinion
No. 06-17-00123-CR
07-10-2017
IN RE DONALD JACK ROBERTSON, II
Original Mandamus Proceeding Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Donald Jack Robertson, II, has filed an amended petition for writ of mandamus in which he asks this Court to order the Honorable R. Wesley Tidwell, Judge of the 6th Judicial District Court of Lamar County, Texas, (1) "to order the allowance of sufficient funds for expert witnesses" in two criminal cases currently pending against Robertson and (2) to compel the trial court to provide transcripts from pretrial proceedings in those cases. Robertson contends that to deny his requests constitutes nothing less than a violation of his constitutional rights.
The cases are trial court cause numbers 26643 and 24080.
Robertson also filed two motions to stay the proceedings below. We denied both of his motions by written orders, which were entered on June 22, 2017, and June 23, 2017.
It is a relator's burden to properly request and show entitlement to mandamus relief. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) ("Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks."). The Texas Court of Criminal Appeals has expressed a "cautious view" of mandamus relief and, thus, has consistently held that it is available only when a relator demonstrates two things: (1) that, under the relevant facts and law, he has a clear right to the relief sought, i.e., the act he seeks to compel is "ministerial" and (2) that there is no adequate remedy at law to address the alleged harm. See In re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
The "clear right" element associated with mandamus relief has historically been stated in terms of requiring that the judicial conduct from which relief is sought be "ministerial in nature." Buntion v. Harmon, 827 S.W.2d 945, 947-48 (Tex. Crim. App. 1992) (orig. proceeding). An act is ministerial "where the law clearly spells out the duty to be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment." Tex. Dep't of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981) (orig. proceeding). An act is not ministerial if the trial court must weigh conflicting claims which require a legal resolution. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). Mandamus will not issue to compel an act that is to any degree discretionary or debatable. See State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex. Crim. App. 1985) (mandamus not available when trial court required to resolve several separate legal issues before reaching ultimate ruling even when facts undisputed).
In his petition, Robertson states he was indicted in two separate causes for the offense of sexual assault of a child. The trial court found Robertson indigent, appointed him counsel, and set his cases for trial on June 26, 2017. During the course of pretrial proceedings, the State provided him with (1) a notice of expert witnesses and (2) a notice of extraneous offenses, indicating its intent to introduce them in its case-in-chief. After the State provided its notices, the trial court conducted pretrial hearings regarding the State's experts' qualifications and on the admissibility of the extraneous offenses.
On May 23, 2016, Robertson filed (1) a motion for investigative assistance at state expense and (2) a motion for expert assistance by Kim Hart, who is the Executive Director of the National Child Abuse Defense Resource Center. On June 8, 2016, the trial court "met ex parte" with Robertson's counsel and approved Robertson's motion for investigative assistance in the amount of $1,000.00 and his motion for expert assistance by Kim Hart in the amount of $1,000.00. Robertson made a third "request" to the trial court for approval of expert witness funds. On June 28, 2016, Robertson provided the trial court with the names of three potential experts, along with their qualifications and their estimated fees for their services. Following a telephonic hearing, the trial court entered its order denying Robertson's third request.
The meeting between Robertson's counsel and the trial court was not memorialized for the record. However, the trial court entered an order stating, "The Court finds that the defendant remains indigent and unable to afford the services requested above and further authorizes initial funds in the amount of $1000 for the services requested herein." In a handwritten note, the trial court clarified that "the amount is total for both cases." The trial court also ordered the Lamar County Auditor's Office to pay the expert's fee.
The experts' estimates ranged from $2,000.00 to $3,000.00 in fees per day. All of the experts advised Robertson that they would be unable to review such an extensive amount of material prior to the trial date. According to two of the experts, the total estimated cost of their services would be approximately $15,000.00.
In Ake v. Oklahoma, the defendant requested the appointment of a psychiatric expert to assist with his defense. Ake v. Oklahoma, 470 U.S. 68 (1985). In that case, the United States Supreme Court held that due process requires that a defendant have access to materials essential to mounting an effective defense. Id. at 77. Although the State is not required to "purchase for an indigent defendant all the assistance that his wealthier counterparts might buy," it must provide him with the basic tools to allow him to present his defense. Id. The Court set out three factors that are relevant in determining "whether, and under what conditions, the participation of [an expert] is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent . . . assistance." Id. The Court explained,
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 procedural safeguards that are sought, and the risk of erroneous deprivation of the affected interest if those safeguards are not provided.Id.
Courts have considered the application of Ake when a defendant is seeking the appointment of an expert in a field other than psychiatry. The Texas Court of Criminal Appeals addressed this issue, finding that "Ake requires the appointment of an expert regardless of his field of expertise"; however, "in any given case, the necessity for the appointment under Ake will depend upon whether the defendant has made a sufficient threshold showing of need for the expertise." Rey v. State, 897 S.W.2d 333, 338 (Tex. Crim. App. 1995).
In addition, on June 19, 2017, Robertson filed an "application for transcripts in forma pauperis," asking the trial court to provide him, free of cost, the transcripts of the pretrial hearings mentioned above. That same day, the trial court denied Robertson's motion.
Pursuant to a defendant's right to equal protection, the State must provide an indigent defendant with a transcript of testimony from a previous proceeding when the transcript is necessary for an effective defense or appeal. Britt v. N. Carolina, 404 U.S. 226, 227 (1971). The United States Supreme Court has identified two relevant factors in determining a defendant's need: (1) the value of the transcript in connection with the defense and (2) the availability of alternative means that would fulfill the same function as a transcript. Id. The Texas Court of Criminal Appeals has followed the Supreme Court's dictate in Britt. See White v. State, 823 S.W.2d 296, 298-99 (Tex. Crim. App. 1992); see also Armour v. State, 606 S.W.2d 891, 893-94 (Tex. Crim. App. 1980) (holding that defendant's need for former trial testimony is presumed and State has burden of showing lack of need).
Robertson contends the trial court's failure to provide him with the requested items impairs his right to confront the witnesses against him, his right to effective assistance of counsel, his right to be presumed innocent, and his right to the due process of law. Solely due to his dissatisfaction with the trial court's rulings, Robertson asks this Court to compel the trial court to grant his requests. There are two reasons we cannot grant Robertson relief. First, Robertson's claims may be properly pursued through a direct appeal. Second, he has not "show[n] he has a clear right to the relief sought" by demonstrating that "the facts and circumstances dictate but one rational decision under unequivocal, well-settled[,] . . . and clearly controlling legal principles." See Bowen v. Carnes, 343 S.W.3d 805, 811 (Tex. Crim. App. 2011) (orig. proceeding). To the contrary, the trial court was required to consider several factors concerning the circumstances of this particular case, and then to make a decision in a manner it believed to be appropriate. This Court may not compel the trial court to rule in a certain way in matters that involve the trial court's discretion.
Robertson cited several cases in support of his petition for a writ of mandamus, including Hinton v. Alabama, 134 S.Ct. 1081 (2014); Britt, 404 U.S. 226; Griffin v. Illinois, 351 U.S. 12 (1956); Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995); White v. State, 823 S.W.2d 296 (Tex. Crim. App. 1992); and Billie v. State, 605 S.W.2d 558 (Tex. Crim. App. 1980). These cases, however, do not contain requests for mandamus relief. They address issues raised in either a direct appeal or other avenue of post-conviction relief.
We deny Robertson's amended petition for writ of mandamus.
Josh R. Morriss
Chief Justice Date Submitted: July 7, 2017
Date Decided: July 10, 2017 Do Not Publish