NUMBER 13-12-00068-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSEPH MICHAEL LEMKE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 9th District Court of Montgomery County, Texas.
MEMORANDUM OPINION1 Before Justices Garza, Perkes, and Longoria Memorandum Opinion by Justice Perkes Appellant Joseph Michael Lemke appeals his conviction of aggravated sexual
assault, a first-degree felony, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West 2011),
enhanced by two prior felony convictions, see id. § 12.42 (West 2011). After the jury
found him guilty, the trial court assessed punishment at life imprisonment in the Texas
1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). Department of Criminal Justice, Institutional Division. By two related issues, appellant
argues the trial court erroneously denied his (1) motion for continuance and (2) motion for
appointment of expert assistance. We affirm.
I. BACKGROUND2
In March 2010, a grand jury indicted appellant for aggravated sexual assault
relating to appellant’s alleged digital penetration of a child younger than fourteen.3 In
February 2011, appellant moved to discover information that was collected during the
Texas Department of Family and Protective Services investigation of the case. On May
26, the State filed a notice of its intent to call certain witnesses, including Lawrence
Thompson Jr., an “Expert Relating to Sexual Abuse Victims and Offenders.”
On August 26, 2011, appellant filed a motion for appointment of expert assistance
and a motion for continuance. Appellant’s trial began on August 29, at which point
appellant argued his two motions. The trial court denied the motions.
II. MOTIONS FOR CONTINUANCE AND TO APPOINT EXPERT ASSISTANCE
By his first issue, appellant argues the trial court erred by denying his motion for
continuance. Appellant requested a continuance to consult with an expert. Appellant’s
second issue claims the trial court erred by denying his motion for expert assistance.
Given the interrelatedness of the two motions, we review appellant’s two issues together.4
2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 3 Appellant was indicted in a second count for indecency with a child by contact, but that count was later converted into a lesser-included count rather than an independent one. 4 Appellant presented the two motions together before the trial court and addressed the two issues together in his brief. 2 A. Standards of Review and Applicable Law
1. Motion for Continuance
We review the trial court’s denial of a motion for continuance for abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 775 (Tex. Crim. App. 2007). To establish
abuse of discretion, an appellant must show that the denial of his motion resulted in actual
prejudice. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000), superseded by
statute on other grounds as recognized by Coleman v. State, No. AP-75478, 2009 WL
4696064, at *11 & 11 n.46 (Tex. Crim. App. Dec. 9, 2009) (not designated for publication);
Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (en banc); Duhamel v.
State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986) (en banc).
A continuance is not a matter of right. See TEX. CRIM. PROC. CODE ANN. art.
29.06(6) (West 2006); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995)
(en banc). Moreover, the court of criminal appeals has imposed a “diligence requirement
as a precondition to continuance based on the need for additional trial preparation.”
Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010) (explaining Wright, 28
S.W.3d at 533). A showing of diligence in attempting to secure an expert is required
even if the appellant shows prejudice resultant from the trial court’s refusal of a
continuance. See id.; Wright, 28 S.W.3d at 533.
2. Motion for Expert Assistance
We review a trial court’s denial of a motion for expert assistance for an abuse of
discretion. See Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998) (en banc);
3 Perales v. State, 226 S.W.3d 531, 536 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
An abuse of discretion occurs only when the trial judge’s decision was so clearly wrong as
to lie outside the zone within which reasonable persons might disagree. Zuliani v. State,
97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
Ake v. Oklahoma provides that an indigent defendant is entitled to expert
assistance if “the expert can provide assistance which is likely to be a significant factor at
trial.” Ex parte Jimenez, 364 S.W.3d 866, 876 (Tex. Crim. App. 2012) (quoting Ake v.
Oklahoma, 470 U.S. 68, 74 (1985)). Three interests must be balanced in determining
whether the State must provide such access:
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 an erroneous deprivation of the affected interest if those safeguards are not provided.
Id. (quoting Ake, 470 U.S. at 77).
On the other hand, “[t]he Supreme Court has stated that an indigent defendant is
not entitled to the appointment of experts when he offers ‘little more than undeveloped
assertions that the requested assistance would be beneficial.’ He must provide concrete
reasons for requiring the appointment of any particular expert.” Id. at 877–78 (citing
Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)). The court of criminal appeals
referenced Professor LaFave’s procedural guidelines: “The defense must identify the
expert, explain what the expert will do, and explain why that will be important in
representing the defendant.” Id. at 878 (quoting W AYNE R. LAFAVE, CRIMINAL PROCEDURE
§ 11.2(e) at 654 (3d ed. 2007)). For these reasons, the court of criminal appeals
4 “reiterated the importance of presenting affidavits or other information to the trial judge in
making the required threshold showing.” Id. at 881–82 (citing Williams v. State, 958
S.W.2d 186, 193 (Tex. Crim. App.
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NUMBER 13-12-00068-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSEPH MICHAEL LEMKE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 9th District Court of Montgomery County, Texas.
MEMORANDUM OPINION1 Before Justices Garza, Perkes, and Longoria Memorandum Opinion by Justice Perkes Appellant Joseph Michael Lemke appeals his conviction of aggravated sexual
assault, a first-degree felony, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West 2011),
enhanced by two prior felony convictions, see id. § 12.42 (West 2011). After the jury
found him guilty, the trial court assessed punishment at life imprisonment in the Texas
1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). Department of Criminal Justice, Institutional Division. By two related issues, appellant
argues the trial court erroneously denied his (1) motion for continuance and (2) motion for
appointment of expert assistance. We affirm.
I. BACKGROUND2
In March 2010, a grand jury indicted appellant for aggravated sexual assault
relating to appellant’s alleged digital penetration of a child younger than fourteen.3 In
February 2011, appellant moved to discover information that was collected during the
Texas Department of Family and Protective Services investigation of the case. On May
26, the State filed a notice of its intent to call certain witnesses, including Lawrence
Thompson Jr., an “Expert Relating to Sexual Abuse Victims and Offenders.”
On August 26, 2011, appellant filed a motion for appointment of expert assistance
and a motion for continuance. Appellant’s trial began on August 29, at which point
appellant argued his two motions. The trial court denied the motions.
II. MOTIONS FOR CONTINUANCE AND TO APPOINT EXPERT ASSISTANCE
By his first issue, appellant argues the trial court erred by denying his motion for
continuance. Appellant requested a continuance to consult with an expert. Appellant’s
second issue claims the trial court erred by denying his motion for expert assistance.
Given the interrelatedness of the two motions, we review appellant’s two issues together.4
2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 3 Appellant was indicted in a second count for indecency with a child by contact, but that count was later converted into a lesser-included count rather than an independent one. 4 Appellant presented the two motions together before the trial court and addressed the two issues together in his brief. 2 A. Standards of Review and Applicable Law
1. Motion for Continuance
We review the trial court’s denial of a motion for continuance for abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 775 (Tex. Crim. App. 2007). To establish
abuse of discretion, an appellant must show that the denial of his motion resulted in actual
prejudice. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000), superseded by
statute on other grounds as recognized by Coleman v. State, No. AP-75478, 2009 WL
4696064, at *11 & 11 n.46 (Tex. Crim. App. Dec. 9, 2009) (not designated for publication);
Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (en banc); Duhamel v.
State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986) (en banc).
A continuance is not a matter of right. See TEX. CRIM. PROC. CODE ANN. art.
29.06(6) (West 2006); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995)
(en banc). Moreover, the court of criminal appeals has imposed a “diligence requirement
as a precondition to continuance based on the need for additional trial preparation.”
Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010) (explaining Wright, 28
S.W.3d at 533). A showing of diligence in attempting to secure an expert is required
even if the appellant shows prejudice resultant from the trial court’s refusal of a
continuance. See id.; Wright, 28 S.W.3d at 533.
2. Motion for Expert Assistance
We review a trial court’s denial of a motion for expert assistance for an abuse of
discretion. See Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998) (en banc);
3 Perales v. State, 226 S.W.3d 531, 536 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
An abuse of discretion occurs only when the trial judge’s decision was so clearly wrong as
to lie outside the zone within which reasonable persons might disagree. Zuliani v. State,
97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
Ake v. Oklahoma provides that an indigent defendant is entitled to expert
assistance if “the expert can provide assistance which is likely to be a significant factor at
trial.” Ex parte Jimenez, 364 S.W.3d 866, 876 (Tex. Crim. App. 2012) (quoting Ake v.
Oklahoma, 470 U.S. 68, 74 (1985)). Three interests must be balanced in determining
whether the State must provide such access:
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 an erroneous deprivation of the affected interest if those safeguards are not provided.
Id. (quoting Ake, 470 U.S. at 77).
On the other hand, “[t]he Supreme Court has stated that an indigent defendant is
not entitled to the appointment of experts when he offers ‘little more than undeveloped
assertions that the requested assistance would be beneficial.’ He must provide concrete
reasons for requiring the appointment of any particular expert.” Id. at 877–78 (citing
Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)). The court of criminal appeals
referenced Professor LaFave’s procedural guidelines: “The defense must identify the
expert, explain what the expert will do, and explain why that will be important in
representing the defendant.” Id. at 878 (quoting W AYNE R. LAFAVE, CRIMINAL PROCEDURE
§ 11.2(e) at 654 (3d ed. 2007)). For these reasons, the court of criminal appeals
4 “reiterated the importance of presenting affidavits or other information to the trial judge in
making the required threshold showing.” Id. at 881–82 (citing Williams v. State, 958
S.W.2d 186, 193 (Tex. Crim. App. 1997) (en banc)).
B. Discussion
Appellant moved to continue the trial so that he could consult Carmen Petzold, “a
competent and qualified specialist in the field of forensic psychology or psychiatry.” In
his motion for expert assistance, appellant claimed Petzold was “necessary to enable
[appellant] to prepare effectively for trial, present favorable evidence[,] and to
cross-examine the [S]tate’s witnesses. The evidence which will be the subject of expert
opinion is critical to a determination of the child’s testimony.”
Appellant presented his two motions to the trial court on the first day of trial.
Appellant wanted a continuance so his expert could review “CPS files and videos of the
multiple children,” noting that the expert review “would have to take several days.” The
trial court asked, “[W]hy haven’t you already accomplished that?” Appellant responded
that the State’s July 22 delivery of the CPS files, which appellant requested in February,
had left the defense with only fifteen days to consult an expert (the deadline for appointing
experts was 21 days before trial began). Appellant asserted, “At this point, the State has
already mentioned they are going to have an expert testify regarding this child’s—
regarding the child’s statement. We think it’s only fair that he [appellant] be able and
allowed to have that same type of expert for that basis.” The trial court denied
appellant’s motions.
5 Appellant’s Ake motion did not specify to the trial court what, if anything, the expert
would potentially glean by reviewing the case files. Of course, we do not discount an
indigent defendant’s right to have an expert 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.” Ex parte Jimenez, 364 S.W.3d at 877
(quoting DeFreece v. State, 848 S.W.2d 150, 161 n. 7 (Tex. Crim. App. 1993) (en banc)).
The defendant, however, must nevertheless make “a sufficient threshold showing of the
need for expert assistance on a particular issue.” Id. Here, appellant’s mere affirmation
to the trial court that he wanted an expert to review “all the facts . . . that have been
developed by the State” was not sufficiently concrete to warrant appointing an expert.
See id. at 878.
Moreover, in the written motion, appellant only conclusorily claimed an expert was
necessary; he did not clarify how or why, and he did not attach any affidavits evidencing a
need for expert assistance.
In cases holding that a sufficient showing was not made under Ake, the defendant typically has failed to support his motion with affidavits or other evidence in support of his defensive theory, an explanation as to what his defensive theory was and why expert assistance would be helpful in establishing that theory, or a showing that there was reason to question the State’s expert and proof.
Id. at 881–82 (quoting Rey v. State, 897 S.W.2d 333, 341 (Tex. Crim. App. 1995) (en
banc)). We hold appellant failed to provide concrete reasons warranting continuing trial
for the appointment of an expert and offered “little more than undeveloped assertions that
the requested assistance would be beneficial.” See Ex parte Jimenez, 364 S.W.3d at
878 (internal quotation omitted). Accordingly, the trial court’s denial of the motion for
6 expert assistance was not so clearly wrong as to lie outside the zone of reasonable
disagreement. See Zuliani, 97 S.W.3d at 595. The trial court did not abuse its discretion
in denying appellant’s motion for expert assistance.
Likewise, the trial court did not abuse its discretion in denying appellant’s motion
for continuance, especially given that the trial court properly denied his motion for expert
assistance. Appellant’s assertion that the defense should be entitled to an expert
because the State intended to use one did not inform the trial court why appellant had
failed to already secure an expert. The State divulged its intent to use an expert and the
expert’s specialty in May 2010, leaving appellant ample time to locate an expert.
Appellant’s complaint about the tardy delivery of CPS files did not explain why he failed to
earlier seek expert assistance, a continuance, or even the court’s permission to alter or
waive the twenty-one day pre-trial deadline under the circumstances. Appellant did not
satisfy the diligence precondition to a continuance. See Gonzales, 304 S.W.3d at 843;
Wright, 28 S.W.3d at 533. The trial court did not abuse its discretion in denying
appellant’s motion for continuance.
We overrule appellant’s first and second issues.
III. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 24th day of October, 2013.