## NUMBER 13 - 1 2 - 00 068 - 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 OPINION 1


### Before Justice s Garza, Perkes , and Longoria Memorandum Opinion by Justice Perkes Appellant Joseph Michael Lemke appeals his conviction of aggravated sexual
assault , a first

- degree felony, s ee T EX

. P ENAL C ODE A NN . § 22.021(a)(1)(B) (West 2011), enhanced by two prior felony convictions , see id . § 12.42 (West 2011)

. A fter the jury fou nd 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 T EX

. G OV ' T C ODE A NN

. § 73.001 (West 2005).2

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 appointm ent of expert assistance

. We affirm.
I. BACKGROUND 2
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 La wrence 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. Appell ant’s trial began on August 29, at which point appell ant 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 assistan ce. 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 fa miliar 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 T EX

. R. A PP

. 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 ad dressed the two issues together in his brief.3

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 T EX

. C RIM

. P ROC

. C ODE A NN . art. 29.06(6) (West 20 06 ) ; 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. Stat e , 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);4

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 acti on 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 depriva tion 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 concret e 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 identif y 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. L A F AVE , C RIMINAL P ROCEDURE § 11.2(e) at 654 (3d ed. 2007)). For these reasons, the court of criminal appeals5

“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. Cr im. 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, appe llant 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 determinatio n of the child’s testimony.”
A ppellant 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 C PS 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 the y 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.6

A ppellant’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 lig ht.” 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 particu lar issue.” Id

. Here, a ppellant’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. Moreov er, i n 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 exp ert assistance would be helpful in establishing that theory, or a showing that there was reason to question the State’s expert and proof.
I d . 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, t he trial court’s denial of the motion for7

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 d iscretion 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 . A ppellant’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

. A ppellant’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 permi ssion to alter or waive the twenty

- one day pre

- trial deadline under the circumstances

. A ppellant 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.
W e overrule appellant’s first and second issues.
III

. CONCLUSION We affirm the trial court’s judgment. GREGORY T. PERKES Justice
Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed the 2 4 t h d ay of O c t o b e r , 201 3

.