In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-15-00195-CR

JEFFREY LAWRENCE MACDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court

Gregg County, Texas

Trial Court No. 44,604-A

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

Memorandum Opinion by Chief Justice Morriss
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MEMORANDUM OPINION

In a single trial court case, Jeffrey Lawrence MacDonald, pled guilty in open pleas to two 

counts of aggravated sexual assault of a child,1one count of sexual assault of a child,2and one 

count of indecency with a child by sexual contact.3 MacDonald was found guilty and, after a 

nonjury punishment trial, was sentenced to life imprisonment on each of the first two counts and 

twenty years’ imprisonment on each of the latter two counts, all to run concurrently. On appeal, 

the indigent MacDonald complains of not being allowed funds to pay for a proposed mitigation 

expert and of being assessed attorney fees for his appointed counsel.

We modify the judgment to strike the assessment of attorney fees and affirm the judgment, 

as modified, because (1) denying the motion for an expert was not an abuse of discretion and 

(2) the assessment of attorney fees was erroneous.

(1) Denying the Motion for an Expert Was Not an Abuse of Discretion

In a pretrial motion unaccompanied by affidavits or other evidence, MacDonald sought the 

appointment, at state expense, of Wade French, a licensed professional counselor. After a 

statutorily authorized ex parte hearing held two weeks before trial, at which hearing no evidence 

was presented but only argument of counsel was heard, the trial court denied the motion. 

 

1See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2015).

2See TEX. PENAL CODE ANN. § 22.011 (West 2011).

3See TEX. PENAL CODE ANN. § 21.11 (West 2011).
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On appeal, MacDonald claims that he made a sufficient showing of his need for the expert 

assistance and that denying him that assistance produced a fundamentally unfair trial. The State 

argues that, because MacDonald did not demonstrate that the expert would likely be a significant 

factor in MacDonald’s defense, the trial court was within its discretion in denying the motion. We 

agree that MacDonald did not demonstrate his entitlement to have his motion granted. 

An indigent defendant that makes a threshold showing that expert assistance would likely 

be a significant factor in allowing him or her the basics in defending the charge is entitled to the 

appointment of an expert. Ake v. Oklahoma, 470 U.S. 68, 82–83, 86 (1985); Griffith v. State, 983

S.W.2d 282, 286–87 (Tex. Crim. App. 1998). While, constitutionally, an expert must be appointed 

in some circumstances, the State is not required to “purchase for the indigent defendant all the 

assistance that his wealthier counterpart might buy . . . .” Ake, 470 U.S. at 77.

In evaluating a request for state funds to pay a defense expert, three factors are relevant: 

(1) the defendant’s interest that will be affected, (2) the government’s interest that will be affected, 

and (3) the probable value of having the expert weighed against the risk of “erroneous deprivation” 

without the expert. Id.; Rey v. State, 897 S.W.2d 333, 337 (Tex. Crim. App. 1995). The underlying 

purpose is to see that an indigent defendant will have a competent expert to assist with the basics 

of presenting a defense. Ake, 470 U.S. at 77; Griffith, 983 S.W.2d at 286. The context of the 

request, the type of expert, and the nature and complexity of the field of specialty are factors in 

determining if the expert will be a significant factor at trial. Griffith, 983 S.W.2d at 286–87. “The 

key question appears to be whether there is a high risk of an inaccurate verdict absent the 

appointment of the requested expert.” Busby v. State, 990 S.W.2d 263, 271 (Tex. Crim. App. 
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1999). The defendant must make a threshold showing of his or her particularized need for the 

expert’s assistance. See Griffith, 983 S.W.2d at 286–87; Rey, 897 S.W.2d at 339. To make that 

showing, a defendant must offer more “than undeveloped assertions that the requested assistance 

would be beneficial.” Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997) (quoting 

Caldwell v. Mississippi, 472 U.S. 320, 323–24 n.1 (1985)); Rey, 897 S.W.2d at 339. He or she 

must demonstrate a reasonable probability that an expert would be helpful and that he or she would 

have a fundamentally unfair trial without that help. Davis v. State, 905 S.W.2d 655, 659 (Tex. 

App.—Texarkana 1995, pet. ref’d).

We review the trial court’s denial of the appointment of an expert for an abuse of discretion. 

Griffith, 983 S.W.2d at 287; De Freece v. State, 848 S.W.2d 150, 154 n.3 (Tex. Crim. App. 1993). 

We look to the facts and arguments before the trial court at the time of its ruling. Rey, 897 S.W.2d 

at 342 n.9. 

In cases holding that a sufficient showing was not made under Ake, the 

defendant typically has failed to support his [or her] motion with affidavits or other 

evidence in support of his [or her] defensive theory, an explanation as to what his 

[or her] defensive theory was and why expert assistance would be helpful in 

establishing that theory, or a showing that there was a reason to question the State’s 

expert and proof.

Id. at 341.

In his motion for appointment of an expert and the ex parte hearing, MacDonald claimed 

that he needed French to complete a sex offender risk assessment, to draft a mitigation report, and 

to testify at MacDonald’s trial. MacDonald’s motion was not accompanied with any supporting 

affidavit setting out any facts underlying his claim. At the pretrial hearing on the motion, 
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MacDonald argued that he hoped to get from the proposed expert the opinion that MacDonald’s 

acts were isolated incidents, not a habitual pattern of behavior. No evidence was adduced at the 

pretrial hearing. The caselaw supporting the right to the appointment of an expert requires a 

particularized factual showing to back up the request for an expert. See Williams, 958 S.W.2d at 

192; Rey, 897 S.W.2d at 339 Even if MacDonald had backed up his claims with evidence, the 

request appears to have been based on hope or speculation, not on any specified, known benefit 

that was expected from the assistance. In fact, after generally outlining his hopes for the expert, 

MacDonald’s counsel said, “Looping all this together, Judge, I think there’s something that the 

expert witness can do for us in this case. I don’t know what it is, but if I don’t ask for an expert, 

I’d live under the threat” of being found ineffective. 

We add that the proposed expert is a licensed professional counselor, not a scientific expert, 

mitigation expert/investigator, or psychiatrist. As such, the trial court, which was to assess 

punishment, could conclude that his potential impact on assessment of punishment would not be 

significant. The nature of the testimony apparently sought by MacDonald does not lead us to 

conclude that there was a high risk of an inaccurate result without French’s appointment. See 

Busby, 990 S.W.2d at 271. Thus, MacDonald did not make the required showing of his need to 
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obtain an expert witness. The trial court did not abuse its discretion when it denied MacDonald’s 

motion for the appointment of an expert.4

We overrule this issue.

(2) The Assessment of Attorney Fees Was Erroneous

MacDonald also asserts that he was improperly assessed attorney fees in the trial court’s 

judgment. We agree.

Though the record demonstrated, and the trial court had found, that MacDonald was 

indigent, the judgment ordered that MacDonald pay attorney fees. A trial court may order an 

indigent defendant to pay a court-appointed attorney’s fees only if “the judge determines that [the] 

defendant has financial resources that enable the defendant to offset in part or in whole the costs 

of the legal services provided . . . including any expenses and costs.” TEX. CODE CRIM. PROC.

ANN. art. 26.05(g) (West Supp. 2015). “[T]he defendant’s financial resources and ability to pay 

are explicit critical elements in the trial court’s determination of the propriety of ordering 

 

4Nothing in our opinion should be understood to ratify the use of the Ake right to obtain expert assistance in postconviction situations. See, e.g., Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009); 

Ex parte Gutierrez, 337 S.W.3d 883, 889 n.11 (Tex. Crim. App. 2011); Harper v. State, 930 S.W.2d 625, 633 (Tex. 

App.—Houston [1st Dist.] 1996, no pet.). Yet, neither do we hold—and the State does not argue—that the right to 

have expenses paid for a defense expert, such as one focused on punishment-mitigation issues, does not extend to the 

punishment phase of trial.

During the punishment phase of a criminal trial, “[r]egardless of the plea and whether the punishment be 

assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court 

deems relevant to sentencing.” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2015); see also Sims 

v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (holding that relevance is “a question of what is helpful . . . in 

determining the appropriate sentence” (quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006))). That 

relevant information may often include testimony from a mitigation expert/investigator, and defense counsel may be 

ineffective in failing to pursue such information. See Lampkin v. State, 470 S.W.3d 876, 919–20 (Tex. App.—

Texarkana 2015, pet. ref’d); see also Barnett v. State, 338 S.W.3d 680, 686 (Tex. App.—Texarkana 2011, order)

(potential mitigating evidence during punishment phase may often be most important of whole case) (citing Milburn 

v. State, 15 S.W.3d 267, 269 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)); Freeman v. State, 167 S.W.3d 114, 

117 (Tex. App.—Waco 2005, no pet.).
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reimbursement of costs” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 

(Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).

This record contains no finding by the trial court that MacDonald had financial resources 

or was otherwise able to pay his appointed attorney fees. Thus, the assessment of attorney fees 

was erroneous and should be removed. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 

2013); see Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010). The State agrees. 

Accordingly, we modify the trial court’s judgment by deleting the assessment of attorney fees.

As modified, the trial court’s judgment is affirmed.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 24, 2016

Date Decided: June 27, 2016

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