An indigent defendant may move for an appointed expert ex parte to protect work product and ensure meaningful access to justice.
An indigent defendant convicted of capital murder challenged the trial court's denial of his motion for an ex parte hearing regarding the appointment of a psychiatric expert. The court addressed whether the requirement to disclose defensive theories to the State during the threshold showing for expert assistance violated due process. The court held that an indigent defendant is entitled to make such a motion ex parte to protect the work-product doctrine and ensure meaningful access to justice. While the error was harmless regarding the guilt phase, the court found the premature disclosure of the expert's affidavit contributed to the jury's verdict during the punishment phase.
At page 195 Evaluating prejudicial effect of evidence under rule 403214 citing cases“a judge is presumed to engage in the required balancing test once rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise.”
- Charyan Demon Thomas v. the State of Texas, 651 S.W.3d 102 (Tex. App.—Houston [14th Dist.] 2021).published(Once a Rule 403 objection as to prejudice versus probative value is invoked, the trial judge has no discretion as to whether or not to engage in the balancing test required by that rule.)
- Troy Anthony White v. State, No. 03-17-00504-CR (Tex. App.—Austin June 19, 2019).unpublished ([A] judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise.)
- Kevin Ramon Murphy v. State, No. 01-17-00588-CR, 2018 WL 6378004 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018).unpublished ([A] judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise.)
- Hung Phuoc Le v. State, 479 S.W.3d 462 (Tex. App.—Houston [14th Dist.] 2015).published ([A] judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise.)
- Bess, Donald Andrew, Jr., No. AP-76,377 (Tex. Crim. App. Mar. 6, 2013).unpublished(A photograph is admissible if verbal testimony as to matters depicted in the photographs is also admissible.)
- Jonathan Howard v. the State of Texas, No. 02-24-00075-CR (Tex. App.—Fort Worth Jan. 2, 2025).unpublished “once a rule 403 objection as to prejudice versus probative value is invoked, the trial judge has no discretion as to whether or not to engage in the balancing test required by that rule.”
- Aspen Warren v. State, No. 02-17-00221-CR, 2018 WL 3764069 (Tex. App.—Fort Worth Aug. 9, 2018).unpublished([A] judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise.)
- LaQuitha LaShawn Gabriel v. the State of Texas, No. 13-24-00595-CR (July 9, 2026).published But the trial court is not required to conduct a formal Rule 403 hearing or announce that it is conducting the balancing test, and it “is not required to place the results of its balancing test on the record.” Colvin v. State, 54 S.W.3d 82…
- Joshua Aaron Vanarsdale v. the State of Texas, No. 09-24-00371-CR (June 17, 2026).unpublishedWilliams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).
- Mark Dewayne Brown v. the State of Texas, No. 09-25-00026-CR (Feb. 25, 2026).unpublishedWilliams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
Show 155 more citing cases
- PARKER, TAYLOR RENE v. the State of Texas, 727 S.W.3d 38 (Tex. Crim. App. 2025).publishedApp. 2004) (citing Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Steve Cole Brashear v. the State of Texas, No. 02-24-00256-CR (Tex. App.—Fort Worth Aug. 26, 2025).unpublishedGigliobianco, 210 S.W.3d at 641–42; The trial court also overruled Brashear’s other objections, but he does not 5 challenge these rulings on appeal. 15 Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Calvin Gardner v. the State of Texas, No. 06-24-00127-CR (Tex. App.—Texarkana July 24, 2025).unpublished Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Cedric Deshun Alexander v. the State of Texas, No. 06-24-00096-CR (Tex. App.—Texarkana Apr. 1, 2025).unpublished Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- James Irven Staley III v. the State of Texas, No. 02-23-00053-CR (Tex. App.—Fort Worth Mar. 6, 2025).publishedApp. P. 44.2(a); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Simon MacEyra v. the State of Texas, No. 02-24-00146-CR (Tex. App.—Fort Worth Feb. 6, 2025).unpublishedWilliams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Edward Rojas v. the State of Texas, No. 08-23-00305-CR (Tex. App.—El Paso Nov. 5, 2024).publishedWhere, as here, the State specifically objected to the evidence on the grounds that it was prejudicial, thus invoking Rule 403, the judge is presumed to have engaged in the required balancing test and we “refuse to hold the silence in the…
- Stanley Gerald Champ v. the State of Texas, No. 05-22-01150-CR (Tex. App.—Dallas July 17, 2024).unpublishedWilliams, 958 S.W.2d at 195-96.
- Eric Demond McNeil v. the State of Texas, No. 02-22-00277-CR (Tex. App.—Fort Worth Nov. 30, 2023).unpublishedWilliams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Addison Douglas Mays v. the State of Texas, No. 05-21-01033-CR (Tex. App.—Dallas Nov. 20, 2023).unpublishedWilliams. v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Danielle Patrice Woodard v. the State of Texas, No. 09-21-00206-CR (Tex. App.—Beaumont Oct. 4, 2023).unpublished Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Brandon Gordy v. State of Texas, No. 05-19-00444-CR (Tex. App.—Dallas Mar. 4, 2022).unpublished Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- People of Guam v. Eric Juan Palacios Quitugua, 2021 Guam 20 (Guam 2021).publishedSee id. § 3108(b)(2); see also, e.g., State v. Touchet, 93-2839, pp. 8-10 (La. 9/6/94); 642 So. 2d 1213, 1214, 1218 ; State v. Ballard, 428 S.E.2d 178, 180-83 (N.C. 1993); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (en b…
- Marquis Deshawn Clark Jr. v. the State of Texas, 637 S.W.3d 246 (Tex. App.—Beaumont 2021).unpublished Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim.
- Putnal v. State, 814 S.E.2d 307 (Ga. 2018).published
- Bargas v. State, 252 S.W.3d 876 (Tex. App.—Houston [14th Dist.] 2008).published
- Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006).published
- Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004).published
- Greene v. State, 287 S.W.3d 277 (Tex. App.—Eastland 2009).published
- Keen v. State, 85 S.W.3d 405 (Tex. App.—Tyler 2002).published
- Llamas v. State, 270 S.W.3d 274 (Tex. App.—Amarillo 2008).published
- Mauricio v. State, 104 S.W.3d 919 (Tex. App.—Houston [14th Dist.] 2003).published
- Reynolds v. State, 227 S.W.3d 355 (Tex. App.—Texarkana 2007).published
- Bellaire v. State, 110 S.W.3d 664 (Tex. App.—Houston [14th Dist.] 2003).published
- Young v. State, 283 S.W.3d 854 (Tex. Crim. App. 2009).published
- Gonzalez v. State, 296 S.W.3d 620 (Tex. App.—El Paso 2009).published
- Starz v. State, 309 S.W.3d 110 (Tex. App.—Houston [1st Dist.] 2010).published
- Latimer v. State, 319 S.W.3d 128 (Tex. App.—Waco 2010).published
- Aragon v. State, 229 S.W.3d 716 (Tex. App.—San Antonio 2007).published
- Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007).published
- Keith Alan Cook v. State, No. 01-12-00756-CR (Tex. App.—Houston [1st Dist.] Aug. 28, 2014).unpublished
- Loay Abdllah Daraghmeh v. State, No. 05-13-01127-CR, 2014 WL 7269924 (Tex. App.—Dallas Dec. 25, 2014).unpublished
- Laura Knight v. State, 457 S.W.3d 192 (Tex. App.—El Paso 2015).published
- Robert Earl Schiele v. State, No. 01-13-00299-CR, 2015 WL 730482 (Tex. App.—Houston [1st Dist.] Feb. 23, 2015).unpublished
- Lamont Renard Stewart v. State, No. 10-14-00183-CR (Tex. App.—Waco June 19, 2015).unpublished
- Abraham Jacob Proenza v. State, 471 S.W.3d 35 (Tex. App.—Corpus Christi 2015).published
- Jawaid Ahmed Parker v. State, No. 01-05-00586-CR, 2006 WL 2893370 (Tex. App.—Houston [1st Dist.] Oct. 12, 2006).unpublished
- Chon Ki Yi v. State, No. 01-05-01147-CR, 2007 WL 2052064 (Tex. App.—Houston [1st Dist.] July 19, 2007).unpublished
- Andreas Peter Starz v. State, No. 01-07-01075-CR (Tex. App.—Houston [1st Dist.] Sept. 30, 2009).published
- Keithron Marquis Fields v. State, No. 01-07-00856-CR, 2009 WL 723992 (Tex. App.—Houston [1st Dist.] Mar. 19, 2009).unpublished
- Jarrett Delaine Driver v. State, No. 01-07-00386-CR, 2009 WL 276539 (Tex. App.—Houston [1st Dist.] Feb. 5, 2009).unpublished
- Baltazar Tobar v. State, No. 02-02-00455-CR (Tex. App.—Fort Worth June 26, 2003).unpublished
- Juan Argelio Aragon v. State, No. 02-02-00021-CR (Tex. App.—Fort Worth Mar. 20, 2003).unpublished
- Angela New v. State, No. 02-03-00506-CR (Tex. App.—Fort Worth Feb. 3, 2005).published
- Adele Thomas Hartwig v. State, No. 03-00-00619-CR (Tex. App.—Austin Sept. 13, 2001).unpublished
- Christopher Kotaska v. State, No. 03-01-00438-CR (Tex. App. Apr. 11, 2002).unpublished
- Godolfredo Salazar v. State, No. 03-03-00300-CR (Tex. App.—Austin June 24, 2004).unpublished
- Daniel Albert Daigger v. State, No. 03-04-00666-CR (Tex. App.—Austin July 7, 2006).unpublished
- George Stephen Owen v. State, No. 03-05-00751-CR (Tex. App.—Austin June 27, 2007).unpublished
- Rigoberto Martinez Jr. v. State, No. 03-08-00248-CR (Tex. App.—Austin Apr. 3, 2009).unpublished
- Michael James Reichenau v. State of Texas, No. 04-01-00525-CR (Tex. App.—San Antonio Sept. 11, 2002).unpublished
- Albert Barrera v. State, No. 04-03-00901-CR (Tex. App.—San Antonio Nov. 3, 2004).unpublished
- Dwayne Corona v. State, No. 04-02-00898-CR (Tex. App.—San Antonio June 9, 2004).unpublished
- Aron Brown v. State, No. 04-07-00318-CR (Tex. App.—San Antonio June 25, 2008).unpublished
- Rodolfo Ruiz v. State, No. 04-08-00588-CR (Tex. App.—San Antonio Aug. 5, 2009).unpublished
- Clarence Badgett v. State, No. 04-07-00364-CR, 2009 WL 142324 (Tex. App.—San Antonio Jan. 21, 2009).unpublished
- Robert Ray Hester v. State, No. 06-09-00103-CR (Tex. App.—Texarkana Dec. 8, 2009).unpublished
- Dexter Alexander v. State, No. 06-08-00105-CR (Tex. App.—Texarkana Jan. 9, 2009).unpublished
- Ricky D. Huckabey v. State, No. 07-01-00506-CR (Tex. App.—Amarillo Nov. 18, 2002).unpublished
- Douglas Willfred Marchand v. State, No. 07-00-00085-CR (Tex. App.—Amarillo July 21, 2003).unpublished
- Douglas Willfred Marchand v. State, No. 07-00-00085-CR (Tex. App.—Amarillo June 4, 2003).unpublished
- Johnny Llamas v. State, No. 07-07-00281-CR (Tex. App.—Amarillo Oct. 30, 2008).published
- Lori Sue Holcomb v. State, No. 07-06-00138-CR (Tex. App.—Amarillo Apr. 7, 2008).published
- Reister, Roger v. State, No. 08-01-00373-CR (Tex. App.—El Paso June 5, 2003).published
- Ramirez, Fidel v. State, No. 08-01-00295-CR (Tex. App.—El Paso Feb. 6, 2003).published
- Charles Gonzalez v. State, No. 08-04-00057-CR (Tex. App.—El Paso Feb. 19, 2009).published
- James William Hornsby v. State, No. 09-06-00273-CR (Tex. App.—Beaumont Jan. 16, 2008).unpublished
- Correy Vanessa Hurst v. State, No. 12-07-00060-CR (Tex. App.—Tyler July 23, 2008).published
- Koran Joseph Small v. State, No. 13-06-00572-CR (Tex. App.—Corpus Christi Aug. 16, 2007).unpublished
- James Ficarro v. State, No. 13-03-00439-CR, 2007 WL 1218045 (Tex. App.—Corpus Christi Apr. 26, 2007).published
- Jeanine Hannah v. State, No. 13-05-00457-CR (Tex. App.—Corpus Christi Aug. 21, 2008).unpublished
- Deshone Jarmane White A/K/A Deshone Jarmaine White v. State, No. 13-09-00165-CR (Tex. App.—Corpus Christi Aug. 28, 2009).unpublished
- Mohammed, Furqan v. State, No. 14-04-00284-CR (Tex. App.—Houston [14th Dist.] Sept. 1, 2005).unpublished
- McCarthy, Kimberly Lagayle, No. AP-74,590 (Tex. Crim. App. Sept. 22, 2004).unpublished
- Shuffield, Chris Wayne, No. AP-74,574 (Tex. Crim. App. Feb. 15, 2006).published
- Young, Christopher Anthony, No. AP-75,352 (Tex. Crim. App. Apr. 22, 2009).published
- Chanthakoummane, Kosoul, No. AP-75,794 (Tex. Crim. App. Apr. 28, 2010).unpublished
- Damian Ricardo Flores v. State, 440 S.W.3d 180 (Tex. App.—Houston [14th Dist.] 2013).published
- Ronnie Paul Kappel v. State, 402 S.W.3d 490 (Tex. App.—Houston [14th Dist.] 2013).published
- Antonio Luis Garcia v. State, No. 14-11-00533-CR (Tex. App.—Houston [14th Dist.] Aug. 21, 2012).unpublished
- Sir Joshton Sta Vohn Martin v. State, No. 14-10-00440-CR (Tex. App.—Houston [14th Dist.] Dec. 29, 2011).unpublished
- Verdell Johnson v. State, No. 14-10-00414-CR (Tex. App.—Houston [14th Dist.] June 30, 2011).unpublished
- Samuel Anthony Cisneros v. State, No. 07-13-00299-CR (Tex. App.—Amarillo June 18, 2015).unpublished
- Norris Wayne Smith v. State, No. 10-13-00278-CR (Tex. App.—Waco Sept. 18, 2014).unpublished
- Thomas Henry Sinclair v. State, No. 10-11-00424-CR (Tex. App.—Waco Apr. 24, 2014).unpublished
- Pedro Yebra v. State, No. 08-12-00201-CR (Tex. App.—El Paso Sept. 30, 2014).published
- Hiram Rios v. State, No. 08-12-00089-CR (Tex. App.—El Paso May 30, 2014).published
- Stephanie Dawn Shaw v. State, No. 06-11-00155-CR (Tex. App.—Texarkana Mar. 30, 2012).unpublished
- Juan Domingo Hill v. State, 392 S.W.3d 850 (Tex. App.—Amarillo 2013).published
- Jose Luis Cantu v. State, No. 13-10-00047-CR (Tex. App.—Corpus Christi Mar. 1, 2012).unpublished
- Jose Alberto Ramirez v. State, No. 13-10-00205-CR (Tex. App.—Corpus Christi Jan. 19, 2012).unpublished
- Jackie Lee Bibbs v. State, 371 S.W.3d 564 (Tex. App.—Amarillo 2012).published
- Beverly Latimer v. State, No. 10-08-00366-CR (Tex. App.—Waco Apr. 28, 2010).published
- Engin Attila Calbas v. State, No. 01-13-00128-CR (Tex. App.—Houston [1st Dist.] June 19, 2014).unpublished
- Fiala, John Martin v. State, No. 05-12-00748-CR (Tex. App.—Dallas July 17, 2013).unpublished
- Eric Garcia v. State, No. 13-09-00555-CR (Tex. App.—Corpus Christi Apr. 14, 2011).unpublished
- Mark Edward Bolles v. State, No. 07-08-00304-CR (Tex. App.—Amarillo Feb. 16, 2010).unpublished
- Marcus Anthony Shuff v. State, No. 01-12-00034-CR (Tex. App.—Houston [1st Dist.] May 2, 2013).unpublished
- Edwards III, Tommy v. State, No. 05-11-00817-CR (Tex. App.—Dallas Nov. 14, 2012).unpublished
- Clay Russell Jackson v. State, No. 01-11-00772-CR (Tex. App.—Houston [1st Dist.] Jan. 31, 2013).unpublished
- Franklin, Willie Glenn v. State, No. 05-11-00990-CR (Tex. App.—Dallas Oct. 10, 2012).unpublished
- Clint Chad Jones v. State, No. 02-10-00035-CR, 2011 Tex. App. LEXIS 8207 (Tex. App.—Fort Worth Oct. 13, 2011).unpublished
- Erica Larae Kolanowski v. State, No. 02-10-00163-CR (Tex. App.—Fort Worth Apr. 21, 2011).unpublished
- Brian Hernandez v. State, No. 04-11-00025-CR (Tex. App.—San Antonio Jan. 18, 2012).unpublished
- Jose Marvin Martinez v. State, 371 S.W.3d 232 (Tex. App.—Houston [1st Dist.] 2011).published
- Curtis Nathaniel Bullman v. State, No. 09-14-00196-CR (Tex. App.—Beaumont Apr. 13, 2016).unpublished
- Paul Scott Benedict v. State, No. 05-15-00958-CR, 2016 WL 3742127 (Tex. App.—Dallas July 7, 2016).unpublished
- Erich Stockley Seals v. State, No. 09-15-00191-CR (Tex. App.—Beaumont Aug. 10, 2016).unpublished
- Ricardo Carrillo v. State, No. 08-14-00174-CR (Tex. App.—El Paso Aug. 24, 2016).published
- Johnson, Matthew Lee, No. AP-77,030 (Tex. Jan. 13, 2015).published
- Muhammad, Naim, No. AP-77,021 (Tex. Crim. App. Feb. 3, 2015).published
- Rudy Trujillo Dimas v. State, No. 09-14-00019-CR, 2015 Tex. App. LEXIS 11025 (Tex. App.—Beaumont Oct. 28, 2015).unpublished
- John Robert Manning v. State, No. 09-13-00533-CR (Tex. App.—Beaumont Dec. 9, 2015).unpublished
- Lyndon Anderson v. State, No. 06-14-00168-CR (Tex. App.—Texarkana Feb. 18, 2015).published
- Norman Andrew Puckett v. State, No. 14-14-00313-CR (Tex. App.—Houston [14th Dist.] Feb. 13, 2015).published
- Davis, Franklin, No. AP-77,031 (Tex. Crim. App. Aug. 4, 2015).published
- Proenza, Abraham Jacob, No. PD-1100-15 (Tex. Crim. App. Aug. 26, 2015).published
- Schiele, Robert Earl, No. PD-0264-15 (Tex. Crim. App. Apr. 17, 2015).unpublished
- Harris, Roderick, No. WR-80,923-02 (Tex. Crim. App. June 1, 2015).published
- Efrain Lopez v. State, 478 S.W.3d 936 (Tex. App.—Houston [14th Dist.] 2015).published
- Knight, Laura, No. PD-0319-15 (Tex. Crim. App. Sept. 16, 2015).published
- Francis, Jeremy M., No. PD-0860-15 (Tex. Crim. App. Oct. 16, 2015).published
- Diamond Offshore Servs. Ltd. & Diamond Offshore Servs. Co. v. Willie David Williams, No. 01-13-01068-CV (Tex. App.—Houston [1st Dist.] Dec. 1, 2015).published
- Dejuan McLemore v. State, No. 05-15-00160-CR (Tex. App.—Dallas Dec. 31, 2015).unpublished
- Davis, Franklin, No. AP-77,031 (Tex. Crim. App. Nov. 2, 2016).unpublished
- Kris Edward Rau v. State, No. 02-15-00208-CR (Tex. App.—Fort Worth Apr. 6, 2017).unpublished
- Stanley Lucius Atnipp v. State, 517 S.W.3d 379 (Tex. App.—Eastland 2017).published
- Sergio Maldonado Facundo v. State, No. 06-17-00120-CR (Tex. App.—Texarkana Feb. 1, 2018).unpublished
- Joseph Henry Evans Jr. v. State, No. 09-17-00407-CR (Tex. App.—Beaumont Aug. 29, 2018).unpublished
- Kelly Dwayne Brown v. State, No. 06-18-00151-CR (Tex. App.—Texarkana Feb. 27, 2019).unpublished
- Jerry Lynn McGavitt v. State, No. 08-17-00168-CR (Tex. App.—El Paso Mar. 7, 2019).published
- Lorenzo Jurado v. State, No. 08-17-00010-CR, 2019 WL 1922757 (Tex. App.—El Paso Apr. 30, 2019).published
- Rabyl Riyaz Nathoo v. State, No. 05-18-00745-CR (Tex. App.—Dallas Aug. 21, 2019).unpublished
- Gerald Lamont Peoples v. State, No. 13-18-00238-CR (Tex. App.—Corpus Christi–Edinburg Dec. 19, 2019).unpublished
- Todric McDonald v. State, No. 10-19-00067-CR (Tex. App.—Waco Jan. 8, 2020).unpublished
- Terrence Coleman v. State, No. 02-18-00471-CR, 2020 WL 241975 (Tex. App.—Fort Worth Jan. 16, 2020).unpublished
- Billy Joe Roush v. State, No. 13-18-00350-CR (Tex. App.—Corpus Christi–Edinburg Apr. 23, 2020).unpublished
- Melisa Ann Miller v. State, No. 09-18-00379-CR (Tex. App.—Beaumont Apr. 29, 2020).unpublished
- William B. Glasscock v. State, No. 06-19-00225-CR (Tex. App.—Texarkana Aug. 11, 2020).unpublished
- Santhy Inthalangsy v. State, 610 S.W.3d 138 (Tex. App.—Houston [14th Dist.] 2020).published
- Rick Ephran Jimenez v. State, No. 13-19-00162-CR (Tex. App.—Corpus Christi–Edinburg Dec. 10, 2020).unpublished
- Roy Castaneda Rodriguez v. State, No. 10-18-00179-CR (Tex. App.—Waco Mar. 10, 2021).unpublished
- Galloway v. State, 122 So. 3d 614 (Miss. 2013).published
- John Kelly Forbes v. the State of Texas, No. 10-21-00186-CR (Tex. App.—Waco Aug. 3, 2022).unpublished
- Jeffery Joe Hampton v. the State of Texas, No. 12-22-00128-CR (Tex. App.—Tyler Apr. 20, 2023).published
- Thomas Allen Hadaway v. the State of Texas, No. 10-22-00101-CR (Tex. App.—Waco Nov. 2, 2023).unpublished
- Archie Lee Harris Jr. v. the State of Texas, No. 09-22-00112-CR (Tex. App.—Beaumont Dec. 6, 2023).unpublished
- Quest Al'Javaughn Jones v. the State of Texas, No. 10-23-00146-CR (Tex. App.—Waco Feb. 1, 2024).published
- Quest Al'Javaughn Jones v. the State of Texas, 690 S.W.3d 114 (Tex. App.—Waco 2024).published
- Vinod Devasia v. the State of Texas, No. 01-23-00325-CR (Tex. App.—Houston [1st Dist.] Aug. 29, 2024).unpublished
- Clifton Todd Hanks v. the State of Texas, No. 09-23-00132-CR (Tex. App.—Beaumont Sept. 11, 2024).unpublished
- Christian Lozano v. the State of Texas, 706 S.W.3d 429 (Tex. App.—Austin 2024).published
- Herman Deline Kneeland v. State, No. 02-07-00265-CR (Tex. App.—Fort Worth Dec. 11, 2008).unpublished
- Henry Lee Banks, III v. State, No. 14-19-00238-CR (Tex. App.—Houston [14th Dist.] Mar. 16, 2021).unpublished
- Gerald Alzono Jackson v. the State of Texas, No. 05-22-00370-CR (Tex. App.—Dallas Jan. 30, 2023).unpublished
At page 194 Analyzing harm of denying ex parte motion for expert106 citing casesnoting that Rey’s holding that an Ake claim is structural cannot be applied to conclude that a trial court’s error in failing to allow an ex parte Ake motion is also structural in nature
- Briseno v. Cockrell, 274 F.3d 204 (5th Cir. 2001).published (noting that Rey’s holding that an Ake claim is structural cannot be applied to conclude that a trial court’s error in failing to allow an ex parte Ake motion is also structural in nature)
- John Spencer v. State, No. 10-08-00217-CR (Tex. App.—Waco July 29, 2009).unpublished See id.; see also Williams v. State, 958 S.W.2d 186, 193-94 (Tex. Crim.
- In Re: The State of Texas v. the State of Texas, No. 08-24-00378-CR (Tex. App.—El Paso Dec. 9, 2024).publishedProc. arts. 18A.055(c) (providing for the application for an interception order), Ake, 470 U.S. at 70 (addressing an indigent defendant’s constitutionally required access to a psychiatric examination and assistance as needed to prepare an…
- Sohail Ramzan Khan v. the State of Texas, No. 02-22-00069-CR (Tex. App.—Fort Worth July 18, 2024).unpublishedApp. P. 44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim.
- Troy Anthony Kelley Jr. v. the State of Texas, No. 02-23-00296-CR (Tex. App.—Fort Worth June 27, 2024).unpublishedApp. P. 44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
- Jay Allen Jones v. the State of Texas, No. 02-21-00214-CR (Tex. App.—Fort Worth Apr. 20, 2023).unpublishedWilliams v. State, 958 S.W.2d 186, 194 (Tex. Crim.
- Kevin Wayne Powell v. the State of Texas, No. 02-19-00206-CR (Tex. App.—Fort Worth Nov. 18, 2021).unpublishedApp. P. 44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).
- Putnal v. State, 814 S.E.2d 307 (Ga. 2018).published
- Parrin Hayes v. State, No. 06-15-00164-CR (Tex. App.—Texarkana July 1, 2016).published
- Damon Asberry v. State, No. 10-08-00237-CR, 2009 Tex. App. LEXIS 8512 (Tex. App.—Waco Nov. 4, 2009).unpublished
Show 75 more citing cases
- Kane v. State, 173 S.W.3d 589 (Tex. App.—Fort Worth 2005).published
- Ex Parte Fife, 49 S.W.3d 35 (Tex. App.—Fort Worth 2001).published
- Gaitan v. State, 257 S.W.3d 1 (Tex. App.—Fort Worth 2008).published
- Wimbrey v. State, 106 S.W.3d 190 (Tex. App.—Fort Worth 2003).published
- Castro v. State, 202 S.W.3d 348 (Tex. App.—Fort Worth 2006).published
- Newbrough v. State, 225 S.W.3d 863 (Tex. App.—El Paso 2007).published
- Gibson v. State, 253 S.W.3d 709 (Tex. App.—Amarillo 2008).published
- McQuarters v. State, 58 S.W.3d 250 (Tex. App.—Fort Worth 2001).published
- Scardino v. State, 294 S.W.3d 401 (Tex. App.—Corpus Christi 2009).published
- Ex Parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010).published
- Farhat v. State, 337 S.W.3d 302 (Tex. App.—Fort Worth 2011).published
- Fulbright v. State, 41 S.W.3d 228 (Tex. App.—Fort Worth 2001).published
- Rankin v. State, 41 S.W.3d 335 (Tex. App.—Fort Worth 2001).published
- Gregory Shawn Henley v. State, 454 S.W.3d 106 (Tex. App.—Fort Worth 2014).published
- Keith Ladale Wilson v. State, 473 S.W.3d 889 (Tex. App. 2015).published
- Craig Moore v. State, No. 01-03-01143-CR (Tex. App.—Houston [1st Dist.] Feb. 10, 2005).unpublished
- John Edward Sikes, Jr. v. State, No. 02-02-00173-CR (Tex. App.—Fort Worth July 24, 2003).unpublished
- Lawrence E. Wimbrey, Jr. A/K/A Lawrence E. Wimbrey v. State, No. 02-02-00370-CR (Tex. App.—Fort Worth Mar. 27, 2003).published
- Ray Mitchell Wilkerson v. State, 144 S.W.3d 150 (Tex. App. 2004).published
- Daniel Kane v. State, No. 02-03-00488-CR (Tex. App.—Fort Worth Sept. 1, 2005).published
- Thomas A. Cantrell v. State, No. 02-04-00083-CR (Tex. App.—Fort Worth May 12, 2005).unpublished
- Hector Castro v. State, No. 02-05-00210-CR (Tex. App.—Fort Worth Aug. 10, 2006).published
- Gustavo Rodriguez v. State, No. 02-05-00021-CR (Tex. App.—Fort Worth Apr. 27, 2006).unpublished
- Baron Dewyon Bostice v. State, No. 02-06-00012-CR (Tex. App.—Fort Worth Sept. 20, 2007).published
- Denise Elverious Miller v. State, No. 02-06-00239-CR (Tex. App.—Fort Worth Sept. 13, 2007).unpublished
- Roland David Lewis v. State, No. 02-06-00320-CR (Tex. App.—Fort Worth July 26, 2007).unpublished
- Robert Lance Morrison v. State, No. 02-05-00443-CR (Tex. App.—Fort Worth Mar. 1, 2007).published
- Rance Duane Shelton v. State, No. 02-07-00437-CR (Tex. App.—Fort Worth Dec. 18, 2008).unpublished
- Donald Joseph Banks, Sr. v. State, No. 02-06-00455-CR (Tex. App.—Fort Worth July 3, 2008).unpublished
- Steven Ray Gaitan v. State, No. 02-06-00399-CR (Tex. App.—Fort Worth Mar. 20, 2008).published
- Andrew Wamsley v. State, No. 02-06-00089-CR, 2008 WL 706610 (Tex. App.—Fort Worth Mar. 13, 2008).unpublished
- Stephen Mole v. State, No. 02-08-00021-CR (Tex. App.—Fort Worth Apr. 23, 2009).unpublished
- Rance Duane Shelton v. State, No. 02-07-00437-CR (Tex. App.—Fort Worth Mar. 5, 2009).unpublished
- Santiago Lomas v. State of Texas, No. 04-00-00508-CR (Tex. App.—San Antonio Jan. 9, 2002).unpublished
- Charles Gibson v. State, No. 07-06-00099-CR (Tex. App.—Amarillo Oct. 9, 2007).published
- Jamar Charles Hill v. State, No. 08-07-00212-CR (Tex. App.—El Paso Nov. 4, 2009).published
- Napper, Ex Parte Lawrence James, No. AP-76,285 (Tex. Crim. App. Sept. 29, 2010).published
- Quinn Ford, Jr. v. State, No. 02-14-00177-CR (Tex. App.—Fort Worth May 28, 2015).unpublished
- Davon D. Crenshaw v. State, No. 02-14-00192-CR (Tex. App.—Fort Worth Apr. 2, 2015).unpublished
- Artie Davis A/K/A Arty Davis v. State, No. 02-12-00093-CR (Tex. App.—Fort Worth Aug. 28, 2014).unpublished
- Michael L. Jordan v. State, No. 02-12-00301-CR (Tex. App.—Fort Worth June 26, 2014).unpublished
- John Claude Sella v. State, No. 08-11-00028-CR (Tex. App.—El Paso Dec. 21, 2012).published
- Earnest Ross v. State, No. 02-11-00440-CR, 2013 WL 43992 (Tex. App.—Fort Worth Jan. 4, 2013).unpublished
- Earnest Ross v. State, No. 02-11-00439-CR (Tex. App.—Fort Worth Jan. 4, 2013).unpublished
- Earnest Ross v. State, No. 02-11-00439-CR (Tex. App.—Fort Worth Jan. 4, 2013).unpublished
- David Paul Sampson v. State, No. 02-11-00495-CR (Tex. App.—Fort Worth Jan. 4, 2013).unpublished
At page 196 Admitting gruesome photographs under rule 403103 citing cases“rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.”
- Christopher Dale Havens v. the State of Texas, No. 13-24-00567-CR (Aug. 20, 2026).published“Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.” Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (citing Williams v. State, 958 S.W.2d…
- Michael Ray Guajardo v. the State of Texas, No. 09-24-00163-CR (June 24, 2026).unpublished“[r]ule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial”
- Larry Wayne Carter v. the State of Texas, No. 10-24-00036-CR (Tex. App.—Waco June 26, 2025).unpublishedDavis, 329 S.W.3d at 806 ; Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim.
- Rodney Dewayne Kuykendall v. the State of Texas, No. 10-23-00066-CR (Tex. App.—Waco Mar. 13, 2025).unpublishedDavis, 329 S.W.3d at 806 ; Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim.
- Jaime Jaramillo v. the State of Texas, No. 05-22-00951-CR (Tex. App.—Dallas May 31, 2024).unpublishedWilliams v. State, 958 S.W.2d 186, 196 (Tex. Crim.
- Sim Stanley Bittick v. the State of Texas, No. 05-22-00882-CR (Tex. App.—Dallas Feb. 16, 2024).unpublishedWilliams v. State, 958 S.W.2d 186, 196 (Tex. Crim.
- Michael Gonzalez v. the State of Texas, No. 03-22-00287-CR (Tex. App.—Austin Oct. 27, 2023).unpublishedTo the extent that appellant asserts that the graphic nature of the photographs had the potential to confuse or mislead the jury, they “depict no more than the injuries inflicted upon the victim and are no more gruesome than the facts of t…
- Terrance Glenn Mosley v. the State of Texas, No. 14-22-00443-CR (Tex. App.—Houston [14th Dist.] Aug. 8, 2023).unpublished“A court may consider several factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice”
- Young v. State, 283 S.W.3d 854 (Tex. Crim. App. 2009).published
- Rigoberto Martinez Jr. v. State, No. 03-08-00248-CR (Tex. App.—Austin Apr. 3, 2009).unpublished
Show 70 more citing cases
- Young, Christopher Anthony, No. AP-75,352 (Tex. Crim. App. Apr. 22, 2009).published
- Strong v. State, 138 S.W.3d 546 (Tex. App.—Corpus Christi 2004).published
- Garrett v. State, 998 S.W.2d 307 (Tex. App.—Texarkana 1999).published
- Tennison v. State, 969 S.W.2d 578 (Tex. App.—Texarkana 1998).published
- Maranda v. State, 253 S.W.3d 762 (Tex. App.—Amarillo 2008).published
- Peters v. State, 93 S.W.3d 347 (Tex. App.—Houston [14th Dist.] 2003).published
- McCulloch v. State, 39 S.W.3d 678 (Tex. App.—Beaumont 2001).published
- Bradshaw v. State, 244 S.W.3d 490 (Tex. App.—Texarkana 2007).published
- Salazar v. State, 222 S.W.3d 10 (Tex. App.—Amarillo 2007).published
- Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010).published
- Desormeaux v. State, 362 S.W.3d 233 (Tex. App.—Beaumont 2012).published
- Johnny Esparza v. State, No. 03-12-00553-CR (Tex. App.—Austin Aug. 20, 2014).unpublished
- Monsour G. Owolabi v. State, 448 S.W.3d 148 (Tex. App.—Houston [14th Dist.] 2014).published
- LaCarlton Dewayne Mitchell v. State, No. 02-07-00196-CR (Tex. App.—Fort Worth Oct. 23, 2008).unpublished
- David Dunkin Ludwick v. State of Texas, No. 03-99-00579-CR (Tex. App.—Austin May 18, 2000).unpublished
- Rosendo Jaimes Martinez v. State, No. 03-01-00005-CR (Tex. App.—Austin Dec. 6, 2001).unpublished
- Sandra Luz Bearden v. State, No. 04-02-00019-CR (Tex. App.—San Antonio Jan. 31, 2003).unpublished
- in the Interest of K.N., T.N., B.Z., T.B. & L.B., Child., No. 06-03-00097-CV (Tex. App.—Texarkana Oct. 30, 2003).published
- Boyce Dee Phillips v. State, No. 06-06-00018-CR, 2006 Tex. App. LEXIS 10622 (Tex. App.—Texarkana Dec. 14, 2006).published
- Mary Katheryn Weaver Scott v. State, No. 06-05-00246-CR (Tex. App.—Texarkana Apr. 20, 2007).unpublished
- Susie Ann Pickrom v. State, No. 06-08-00034-CR (Tex. App.—Texarkana Apr. 25, 2008).unpublished
- Charles Eugene Orange v. State, No. 06-08-00193-CR (Tex. App.—Texarkana Nov. 19, 2009).published
- Jerry T. Smith v. State, No. 07-97-00032-CR (Tex. App.—Amarillo Sept. 19, 2000).unpublished
- James R. Artrip, Jr. v. State of Texas, No. 07-01-00201-CR (Tex. App.—Amarillo Feb. 20, 2002).published
- Amador Salazar v. State, No. 07-04-00090-CR (Tex. App.—Amarillo Sept. 26, 2006).published
- Aurelio R. Miranda v. State, No. 07-05-00413-CR (Tex. App.—Amarillo Nov. 28, 2007).published
- Ricky Rojas v. State, No. 07-05-00127-CR (Tex. App.—Amarillo Apr. 26, 2007).unpublished
- John Perry Love v. State, No. 09-03-00525-CR (Tex. App.—Beaumont July 13, 2005).unpublished
- Brian Edward Collier v. State, No. 12-02-00152-CR (Tex. App.—Tyler Feb. 27, 2004).published
- Joseph Daniel Samet v. State, No. 12-07-00129-CR (Tex. App.—Tyler July 2, 2008).published
- Peters, Jerry A. v. State, No. 14-00-01480-CR (Tex. App.—Houston [14th Dist.] Sept. 12, 2002).published
- Gabriel Castillo v. State, No. 14-03-00034-CR, 2005 Tex. App. LEXIS 1382 (Tex. App.—Houston [14th Dist.] Feb. 15, 2005).published
- Davis, Irving Alvin, No. AP-74,393 (Tex. Crim. App. Sept. 29, 2010).published
- Broadnax, James Garfield, No. AP-76,207 (Tex. Crim. App. Dec. 14, 2011).published
- Green, Gary, No. AP-76,458 (Tex. Crim. App. Oct. 3, 2012).published
- Thuesen, John, No. AP-76,375 (Tex. Crim. App. Feb. 26, 2014).unpublished
- Terrell Maxwell v. State, No. 03-09-00027-CR, 2010 Tex. App. LEXIS 9036 (Tex. App.—Austin Nov. 12, 2010).unpublished
- Roy Garcia v. State, No. 03-11-00403-CR, 2012 WL 3795447 (Tex. App.—Austin Aug. 29, 2012).published
- Raymond Merril Jessop v. State, 368 S.W.3d 653 (Tex. App.—Austin 2012).published
- Allan Eugene Keate v. State, No. 03-10-00077-CR, 2012 WL 896200 (Tex. App.—Austin Mar. 16, 2012).unpublished
- Dustin Anthony Simmang v. State, No. 03-11-00455-CR (Tex. App.—Austin Sept. 11, 2013).unpublished
- Patrick Wayne Womble v. State, No. 03-12-00289-CR (Tex. App.—Austin July 31, 2013).unpublished
- Myron Bishop Head v. State, No. 03-10-00414-CR (Tex. App.—Austin Apr. 24, 2013).unpublished
- Natasha Rashenet Johnson v. State, No. 14-10-00462-CR (Tex. App.—Houston [14th Dist.] May 19, 2011).unpublished
- Roydrick Dominic Jiles v. State, No. 14-10-00549-CR (Tex. App.—Houston [14th Dist.] May 3, 2011).unpublished
- Daniel Scott Johnson v. State, No. 10-12-00437-CR (Tex. App.—Waco Feb. 6, 2014).unpublished
- Robert Vallas Booth v. State, No. 11-12-00053-CR (Tex. App.—Eastland Feb. 28, 2014).unpublished
- Billy Wayne Haynes v. State, No. 11-11-00197-CR (Tex. App.—Eastland June 13, 2013).unpublished
- Tabor Ryan Pardee v. State, No. 06-11-00226-CR, 2012 Tex. App. LEXIS 6823 (Tex. App.—Texarkana Aug. 16, 2012).unpublished
- John Betliskey v. State, No. 07-10-00105-CR (Tex. App.—Amarillo Nov. 17, 2010).unpublished
- Diego Ibarra v. State, No. 04-11-00845-CR (Tex. App.—San Antonio Apr. 17, 2013).unpublished
- Christopher Joseph Hall v. State, No. 13-09-00149-CR (Tex. App.—Corpus Christi Oct. 7, 2010).published
- Chadrick B. Pate v. State, No. 13-09-00112-CR (Tex. App.—Corpus Christi Oct. 7, 2010).unpublished
- Christopher Joseph Hall v. State, No. 13-09-00149-CR (Tex. App.—Corpus Christi Aug. 25, 2010).unpublished
- Emmanuel Suarez v. State, No. 04-10-00586-CR (Tex. App.—San Antonio Aug. 10, 2011).unpublished
- Lucky Lamon Odom v. State, No. 02-09-00096-CR (Tex. App.—Fort Worth June 10, 2010).unpublished
- Frank G. Saenz v. State, No. 04-08-00792-CR (Tex. App.—San Antonio Mar. 3, 2010).unpublished
- Demuntra Rashard Green v. State, No. 05-14-01264-CR (Tex. App.—Dallas Nov. 3, 2015).unpublished
- Kerry Gittens v. State, 560 S.W.3d 725 (Tex. App.—San Antonio 2018).published
- Patrick Leon Washington v. State, No. 01-17-00905-CR (Tex. App.—Houston [1st Dist.] Mar. 7, 2019).unpublished
- Stephen Lawrence Price v. State, No. 05-18-00243-CR (Tex. App.—Dallas May 23, 2019).unpublished
- Stephen Lawrence Price v. State, No. 05-18-00244-CR (Tex. App.—Dallas May 23, 2019).unpublished
- Louis A. Murphy v. State, No. 04-18-00597-CR (Tex. App.—San Antonio Aug. 7, 2019).unpublished
- Luis Rey v. State, No. 11-17-00208-CR (Tex. App.—Eastland Aug. 15, 2019).unpublished
- Jeremy L. Jones v. State, No. 01-19-00151-CR (Tex. App.—Houston [1st Dist.] Feb. 13, 2020).unpublished
- Ty Lee Whitfield v. State, No. 03-19-00091-CR (Tex. App.—Austin Feb. 10, 2021).unpublished
- Cornelius Ashley Palmer v. State, No. 05-19-01135-CR, 2021 WL 1049870 (Tex. App.—Dallas Mar. 19, 2021).unpublished
- Jingbo Xu v. the State of Texas, No. 11-19-00203-CR (Tex. App.—Eastland May 6, 2021).unpublished
- Dewberry v. State, 979 S.W.2d 871 (Tex. App.—Beaumont 1998).published
- Roy Freeman v. the State of Texas, No. 02-24-00385-CR (Tex. App.—Fort Worth July 10, 2025).unpublished
At page 190 Corroborating evidence required for extrajudicial confession52 citing casesstating that under the corpus delecti rule, an extrajudicial confession, standing alone, is not enough to support a conviction; other evidence must exist showing that a crime has in fact been committed
- Sergio Antonio Cerna v. the State of Texas, No. 11-24-00065-CR (Tex. App.—Eastland Aug. 14, 2025).unpublished“The corroborating evidence need not prove that the crime was committed; it ‘need only make this conclusion more probable.’” Miranda, 620 S.W.3d at 928 (quoting Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997)).
- Alexus Dominguez v. the State of Texas, No. 08-24-00082-CR (Tex. App.—El Paso May 27, 2025).publishedIt is not required that the corroborating evidence prove the crime was committed; “it need only make this conclusion more probable.” Id. (citing Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim.
- Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000).published
- Porter v. State, 996 S.W.2d 317 (Tex. App.—Austin 1999).published
- Franks v. State, 90 S.W.3d 771 (Tex. App.—Fort Worth 2002).published
- In Re C.P., 998 S.W.2d 703 (Tex. App.—Waco 1999).published
- Bulington v. State, 179 S.W.3d 223 (Tex. App.—Texarkana 2005).published
- Purvis v. State, 4 S.W.3d 118 (Tex. App.—Waco 1999).published
- Chiles v. State, 988 S.W.2d 411 (Tex. App.—Houston [1st Dist.] 1999).published
- Cantu v. State, 994 S.W.2d 721 (Tex. App.—Austin 1999).published
Show 39 more citing cases
- Juan Gomez Perez A/K/A Arturo Gomez Perez v. State, No. 02-03-00227-CR (Tex. App.—Fort Worth Dec. 16, 2004).unpublished
- Brian Richard Safcsak v. State, No. 02-03-00217-CR (Tex. App.—Fort Worth July 15, 2004).unpublished
At page 192 Establishing threshold showing for expert assistance under Ake52 citing casesstating that to obtain the assistance of an appointed expert requires more than undeveloped assertions that an expert would be helpful
- Jimmie Lee Hance, III v. the State of Texas, 714 S.W.3d 775 (Tex. App.—Fort Worth 2025).publishedIn this regard, the defendant must make a preliminary showing of a significant fact issue “based upon more ‘than undeveloped assertions that the requested assistance would be beneficial.’” Id. at 881 & n.49 (quoting Williams v. State, 958…
- Jorge Izquierdo v. the State of Texas, No. 04-22-00505-CR (Tex. App.—San Antonio May 22, 2024).unpublishedA defendant typically makes a preliminary showing of a significant fact issue “based upon more ‘than undeveloped assertions that the requested assistance would be beneficial.’” Id. at 881 (quoting Williams v. State, 958 S.W.2d 186, 192 (Te…
- Larry Dewitt Jackson Junior v. the State of Texas, No. 14-22-00449-CR (Tex. App.—Houston [14th Dist.] May 9, 2024).unpublishedWilliams v. State, 958 S.W.2d 186, 192 (Tex. Crim.
- in Re City of Lubbock, 666 S.W.3d 546 (Tex. Crim. App. 2023).publishedUnlike Ake, this case does not involve a request for expert assistance, nor does it involve the due process concerns at issue in Ake, namely providing indigent defendant’s meaningful access to justice. 57 54 Id. at 77 . 55 Id. at 83 . 56 I…
- Anthony Maurice Jackson v. the State of Texas, No. 09-21-00141-CR (Tex. App.—Beaumont Nov. 2, 2022).unpublished The defendant must make a preliminary showing that the issue for which they seek an expert is “likely to be a significant factor at trial[.]” Ake, 470 U.S. at 74 ; Williams v. State, 958 S.W.2d 186, 192 (Tex. Crim. App. 1997).
- Don Lee Rosalez v. the State of Texas, No. 13-21-00164-CR (Tex. App.—Corpus Christi–Edinburg Aug. 25, 2022).unpublishedDue process entitles an indigent defendant to the appointment of an expert to assist in their defense when the defendant makes a preliminary showing that the issue for which they seek expert assistance is “likely to be a significant factor…
- McKinney v. State, 59 S.W.3d 304 (Tex. App.—Fort Worth 2001).published
- Dennis v. State, 151 S.W.3d 745 (Tex. App.—Amarillo 2004).published
- Griffith v. State, 983 S.W.2d 282 (Tex. Crim. App. 1998).published
- Smith v. State, 131 S.W.3d 928 (Tex. App.—Eastland 2004).published
Show 38 more citing cases
- Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006).published
- Moore v. State, 889 A.2d 325 (Md. 2005).published
- Addison v. State, 917 A.2d 1200 (Md. Ct. Spec. App. 2007).published
- Mason v. State, 341 S.W.3d 566 (Tex. App.—Amarillo 2011).published
- Parrin Hayes v. State, No. 06-15-00164-CR (Tex. App.—Texarkana July 1, 2016).published
At page 193 Requiring affidavits for expert assistance in defense10 citing casesWe have indicated that a defendant needs to offer affidavits or ‘evidence’ in making this showing.
- John Spencer v. State, No. 10-08-00217-CR (Tex. App.—Waco July 29, 2009).unpublished (We have indicated that a defendant needs to offer affidavits or ‘evidence’ in making this showing.)
- Stevens v. State, 770 N.E.2d 739 (Ind. 2002).published
- Morehart v. Barton, 236 P.3d 1216 (Ariz. Ct. App. 2010).published
- Damon Asberry v. State, No. 10-08-00237-CR, 2009 Tex. App. LEXIS 8512 (Tex. App.—Waco Nov. 4, 2009).unpublished
- Asberry, Damon, No. PD-0257-10 (Tex. Crim. App. Feb. 16, 2011).unpublished
- Joseph Michael Lemke v. State, No. 13-12-00068-CR (Tex. App.—Corpus Christi Oct. 24, 2013).unpublished
- in Re Thomas Allen Simon, No. 03-16-00090-CV (Tex. App.—Austin June 22, 2016).published
- Ashley Eva Morrison v. State, 575 S.W.3d 1 (Tex. App.—Texarkana 2019).published
- Pointe v. State, 371 S.W.3d 527 (Tex. App.—Beaumont 2012).published
At page 191 Factors supporting future dangerousness in capital sentencing6 citing casesparking two streets down from victim's house to evade detection
- Matter of JEH, 972 S.W.2d 928 (Tex. App.—Beaumont 1998).published
- David Thomas Griffith v. A/K/A David Griffith v. State, No. 02-05-00202-CR (Tex. App.—Fort Worth June 29, 2006).unpublished
- Davis, Irving Alvin, No. AP-74,393 (Tex. Crim. App. June 13, 2007).unpublished
- Christopher Galindo v. State, No. 11-12-00073-CR (Tex. App.—Eastland Aug. 29, 2014).unpublished
- Matter of J.E.H., 972 S.W.2d 928 (Tex. App. 1998).published
- Putnal v. State, 814 S.E.2d 307 (Ga. 2018).published
At page 198 Analyzing error types and harmless error standards3 citing cases“the newly promulgated harmless error rule rule 44.2(a) is identical to the previous rule of appellate procedure 81(b)(2). under this rule, the burden is on the state to prove that the error made no contribution to the defendant's conviction or punishment.”
- SMITH, CHAMPAGNE v. the State of Texas, 726 S.W.3d 466 (Tex. Crim. App. 2025).published“the newly promulgated harmless error rule rule 44.2(a) is identical to the previous rule of appellate procedure 81(b)(2). under this rule, the burden is on the state to prove that the error made no contribution to the d…”
- Curtis Green Jr. v. State, No. 14-08-00831-CR (Tex. App.—Houston [14th Dist.] Dec. 8, 2009).unpublished“if appellant believed that the colors in the actual photographs would have made a difference in our assessment of prejudice, it was incumbent upon him to ensure that either the original photographs or color photocopies…”
- Ex Parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011).published
v.
the STATE of Texas, Appellee
Lead Opinion
OPINION
MEYERS, Judge.Appellant was convicted of capital murder and, pursuant to the jury’s answers to the statutory punishment issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), sentenced to death.[1] Article 37.071 § 2(g). Direct appeal is automatic. Article 37.071 § 2(h).
Appellant raises five points of error, including challenges to the sufficiency of the evidence at both stages of trial. We will address appellant’s sufficiency points first.
Viewed in the light most favorable to the verdict, the evidence at trial showed the following: On the morning of February 1,1994, Deputy Sheriff Larry Demanche was called to the Deerwood Subdivision of Montgomery County by a woman concerned about her neighbor. The woman directed him to the victim’s trailer where he discovered the victim’s body lying' on the floor inside. From the appearance of the body, Demanche determined that the victim had been dead for several days. Other officers were called to the scene.
As Detective Bonnie Morris canvassed the neighborhood for possible witnesses, she learned the victim frequented a place called “Bubba’s Lounge.” At “Bubba’s,” Morris was told that the victim had been dating a man by the name of Frank Williams, Sr.. In her attempt to locate Williams, Sr., Morris began calling telephone numbers discovered in the victim’s trailer and eventually called appellant who identified himself as Frank Williams, Sr.’s son. Appellant lived in Con-roe with his stepmother, Nina Williams, and his sister, Angela Ruth Guillory. From her conversation with appellant, Morris learned[*189] the whereabouts of Williams, Sr., and accompanied other detectives to talk to him. As a result of the interview, Williams, Sr., was dropped as a suspect in the case.
Further investigation of the crime scene revealed a shoe print impression on the back of the robe the victim had been wearing. A second shoe print impression was found on the tile floor in the kitchen. The investigating officer also noted that dresser drawers appeared to have been ransacked, a base for a cordless telephone had been jerked from the wall, and a purse appeared to have blood residue on the inside.
During the second day of investigating the crime, Leonard Carothers telephoned Detective David Moore and requested he come to a residence located in the same subdivision as the victim’s trailer. When Moore arrived, he met with Leonard and Betty Carothers (appellant’s stepfather and natural mother), Nina Williams, and Angela Guillory. Guillo-ry informed Moore that she believed both her father, Frank Williams, Sr., and appellant were having affairs with the victim. Guillory and Nina also discussed certain behavior appellant had exhibited after his telephone conversation with Detective Morris the previous day.[2] The women told Moore that they had perceived unusual behavior on appellant’s part on the Friday night before the victim’s body had been found. Guillory stated that she suspected appellant of smoking “crack” that night and also that she had noticed what appeared to be blood around appellant’s cuticles the following weekend. Nina and Guillory informed Moore that once they suspected something had happened, they began looking through the dirty clothes for “[a]nything with blood on it.” They found a pair of appellant’s shorts stained with what looked like blood. Nina handed Moore a plastic bag containing men’s shorts. Appellant was located and taken to the station for questioning. Two detectives noticed at that time that appellant’s tennis shoes appeared to have blood stains on them.
Appellant eventually gave a written and videotaped confession, turned over his shoes and three vials of blood, and consented to a search of his pickup. Appellant told the detectives that he had gotten off work around 5:30 p.m. on Friday, January 28th, cashed his paychecks, made his truck payment, and purchased some “crack.” After going home to change, appellant went to the victim’s house around 11:00 p.m.. Appellant stated that he had been in the victim’s trailer just a few minutes when he picked up a pair of scissors and stabbed her repeatedly. He professed that he could not remember what had happened until he got up off the floor to get a towel. Appellant further stated that he took two of the victim’s rings and went to a “crack” dealer’s house before going home. During a subsequent interview, appellant commented that, prior to entering the trailer, he decided he would kill the victim if necessary to get her rings.
Further investigation led to the discovery of blood smears around a sink in appellant’s trailer, a sweater from appellant’s truck which appeared to have blood splatters on it, and blood stains on the driver’s side of appellant’s vehicle. Two lady’s rings were recovered from a nearby pawn shop which Dennis Hines testified that he had pawned after giving a man fitting appellant’s description twenty dollars for them.[3] Detectives were later notified that a billfold belonging to the victim was being held by a truck driver who had found it in a ditch along the highway between the victim’s house and Conroe.
Upon subsequent scientific testing, investigators determined that the blood on one of appellant’s shoes and sweater was consistent with the blood of the victim. The sole of appellant’s right shoe and the partial shoe print found in the victim’s kitchen were determined to be the same.
At punishment, the State presented a deferred adjudication order wherein appellant had pled to a charge of burglary of a habi[*190] tation, a deferred adjudication order for appellant’s commission of the offense of misdemeanor theft, and the testimony of a young man who told the jury that appellant had struck him when they were junior high school students, along with documents evidencing the juvenile court proceedings associated with this event. Evidence was presented that appellant had picked up an eleven-year-old boy and slammed him on his back for talking back to appellant.
Appellant offered the testimony of his mother and sister as to distressed family background and concluded with the testimony of Master’s-level psychotherapist, Michelle Dennison. Among other conclusions, Dennison opined that appellant had a serious problem with drug abuse and had been using “crack” cocaine for 5-6 hours a day for the five months prior to the victim’s murder, indicating a very severe addiction. On cross-examination, Dennison acknowledged the existence of records from appellant’s job corps’ training wherein it was disclosed that he had been involved in various fights and the destruction of property. Further, Dennison testified that appellant had told her that he had thought of killing people three times before he committed the instant offense, that he has a bad temper, and that he has poor coping skills.
In his first point of error, appellant claims the trial court erred in overruling his motion for instructed verdict presented at the conclusion of the State’s case on guilVin-nocenee because the evidence is insufficient to sustain a verdict of “guilty” to the offense of capital murder. See Tex. Penal Code § 19.03(a)(2). Specifically, appellant claims the statement he made in his confession about being willing to kill the victim for her rings was not corroborated; therefore, he argues the evidence is insufficient to prove beyond a reasonable doubt that he murdered the victim in the course of robbing her.
A defendant’s extrajudicial confession must be corroborated by other evidence tending to show that a crime was committed. Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994). In other words, there must be evidence of the corpus delicti, independent of the defendant’s confession. In capital murder cases, we have further held that an extrajudicial confession must be corroborated as to the underlying felony offense since it is part of the corpus delicti Id. The corroborating evidence need not be sufficient by itself to prove the underlying offense; rather, “[a]ll that is required is that there be some evidence which renders the commission of the offense more probable than it would be without the evidence.” Id. at 15-16. Thus, there need not be corroborating evidence sufficient alone to prove that appellant intended to kill the victim for her rings; the corroborating evidence need only make this conclusion more probable.
The murder scene itself showed signs of a robbery. Officers found ransacked dresser drawers and a purse with traces of blood on the inside, indicating it had been gone through by the murderer. There was testimony that appellant sold the victim’s rings around 11 p.m. on the night of the murder to a man who later pawned them. Finally, the victim’s billfold was found abandoned along the highway. These facts make more probable appellant’s statement that he killed the victim for her rings and thus sufficiently corroborate his confession. Chambers, supra; see also Gibbs v. State, 819 S.W.2d 821 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992). When viewed in a light most favorable to the verdict, given the corroborating evidence and appellant’s confession, the evidence is sufficient to support the jury’s finding beyond a reasonable doubt that appellant committed the murder in the course of committing a robbery. Point of error one is overruled.
In his second point of error, appellant claims the evidence is insufficient to support the jury’s finding that he would be a continuing danger to society. Article 37.071 § 2(b)(1). In reviewing this legal sufficiency point, the Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that appellant would probably commit criminal[*191] acts of violence that would constitute a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Allridge v. State, 850 S.W.2d 471 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). The facts of the crime alone can be sufficient to support an affirmative finding to this special issue. Allridge, supra. In fact, the circumstances of the crime may provide greater probative evidence of a defendant’s probability for committing future acts of violence than any other factor relevant to the second special issue. Id.
At trial, the jury is permitted to look at several factors in its review of future dangerousness including, but not limited to:
1. the circumstances, of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties;
2. the calculated nature of the defendant’s acts;
3. the forethought and deliberateness exhibited by the crime’s execution;
4. the existence of a prior criminal record, and the severity of the prior crimes;
5. the defendant’s age and personal circumstances at the time of the offense;
6. whether the defendant was acting under duress or the domination of another at the time of the offense;
7. psychiatric evidence; and
8. character evidence.
Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). These factors are also helpful in this Court’s evaluation of this question.
As set out above, the evidence in the instant case shows a robbery and murder committed in a brutal manner. The choice of scissors as a weapon required that appellant be in close physical contact with his victim during the attack. See Martinez v. State, 924 S.W.2d 693, 696 (Tex.Crim.App.1996). Despite his personal relationship with the victim, appellant stated in his confession that he was prepared to kill the victim for her jewelry before he even entered her home. Appellant’s confession indicated that he murdered the victim for the sole reason that he wanted money or valuables in order to buy “crack.” These facts demonstrate a wanton and callous disregard for human life.
While the facts do not reveal longtime calculation on appellant’s part to commit murder, they show some forethought and deliberation. Appellant parked two streets down from the victim’s house, in an apparent effort to evade detection. Further, appellant told his psychotherapist that He had considered killing someone on three prior occasions.
Evidence also showed appellant’s prior history of criminal offenses and violence towards others, including violence towards children. Finally, while no psychiatric evidence was presented on behalf of the State, appellant’s own psychotherapist stated that appellant had a bad temper and poor coping skills.
Given this evidence, we conclude that a rational- juror could have found that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Jackson and Allridge, both supra. Point of error two is overruled.
In his third point of error, appellant claims the trial court erred in denying his motion for leave to file for expert assistance ex parte. Appellant asserts that by being denied an ex parte hearing, he was forced to reveal to the State his reasons for needing an expert witness, thereby disclosing at least part of his defensive theory, in denial of his due process right to fundamental fairness as guaranteed by the Fourteenth Amendment to the United States Constitution and in violation of the work product doctrine.
Some four months prior to trial, appellant filed a “Motion for Leave to File Motion for Expert Assistance of a Psychiatrist Ex Parte.” This motion was denied. Appellant was thereupon compelled to provide the State with a copy of his motion requesting the appointment of an expert to assist him.[4] [*192] Attached to his motion and in support thereof, is the affidavit of a psychotherapist initially hired by appellant’s family delineating specific reasons that an expert would be helpful to appellant’s case. The trial judge required that a copy of this affidavit be provided to the State over appellant’s objection. The expert who executed the affidavit is the same expert the trial judge thereafter appointed for the defense.
In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court held that due process entitles an indigent defendant to the appointment of an expert to assist in his defense when the defendant makes a preliminary showing that the issue for which he seeks' expert assistance is “likely to be a significant factor at trial.” Rey v. State, 897 S.W.2d 333, 339 (Tex.Crim.App.1995); De Freece v. State, 848 S.W.2d 150 (Tex.Crim.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 284, 126 L.Ed.2d 234 (1993). This holding is premised upon the notion that an indigent is entitled to “meaningful access to justice” which means that he should have “access to the raw materials integral to the building of an effective defense” thus ensuring “a proper functioning of the adversary process.”
In order to make the required threshold showing for appointment of an expert under Ake, the indigent defendant’s claim must be based upon more “than undeveloped assertions that the requested assistance would be beneficial.” Caldwell v. Mississippi, 472 U.S. 320, 323-24 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985). This Court has emphasized that a defendant will not succeed on his Ake motion absent adequate support behind his allegations:
In cases holding that a sufficiency 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.
Rey, 897 S.W.2d at 341. The question in this case is whether a defendant is entitled to make his Ake threshold showing ex parte.5
In Ake, the Supreme Court stated:
When the defendant is able to make an ex parte threshold showing to the trial court that his [issue] is likely to be a significant factor in his defense, the need for the assistance of [an expert] is readily apparent.
Ake, 470 U.S. at 82-83, 105 S.Ct. at 1096 (emphasis added). While the Supreme Court’s suggestion that the threshold showing should be made ex parte is dicta, it is consistent with the due process principles upon which Ake rests.[6] Pursuant to Ake, [*193] due process requires the appointment of an expert
to provide technical assistance to the accused, to help evaluate the strength of his defense, to offer his own expert [opinion] at trial if it is favorable to the defense, and to identify the weaknesses in the State’s case, if any, by testifying himself and/or preparing counsel to cross-examine opposing experts.
De Freece, 848 S.W.2d at 159. In presenting an Ake motion a defendant will often, if not always, be seeking the assistance of an expert for purposes of developing a defensive theory or questioning a portion of the State’s case. In order to make a threshold showing that the issue underlying the defensive theory or the issue in the State’s ease that the defense has reason to think is vulnerable, will be a significant factor at trial, the defendant necessarily has to explain his theories and describe with some specificity how an expert would assist him. We have indicated that a defendant needs to offer affidavits or “evidence” in making this showing. Rey, 897 S.W.2d at 341. The problem with requiring this showing to be shared with the State at the pretrial stage is that it compels a defendant to disclose to the State his defensive theories or “work product.”[7] See Washington v. State, 856 S.W.2d 184, 188 (Tex.Crim.App.1993); cf. Taylor v. State, 939 S.W.2d 148 (Tex.Crim.App.1996)(when expert is appointed under Ake, that expert’s conclusions are the work-product of defense counsel). In essence, if an indigent defendant is not entitled to an ex parte hearing on his Ake motion, he is forced to choose between either forgoing the appointment of an expert or disclosing to the State in some detail his defensive theories or theories about weaknesses in the State’s case. This is contrary to Ake’s concern that an indigent defendant who is entitled to expert assistance have “meaningful access to justice,” and undermines the work product doctrine.[8] We de-[*194] dine to hold that in order for an indigent defendant to avail himself of one of the “basic tools of an adequate defense,” he may be compelled to disclose defensive theories to the prosecution. We hold that an indigent defendant is entitled, upon proper request, to make his Ake motion ex 'parte. The trial judge erred in overruling appellant’s request to make his Ake motion ex parte.
Appellant argues that the failure to grant an ex parte hearing is structural in nature and therefore immune from a harm analysis, citing Rey. In Rey we held that the total deprivation of expert assistance to which the defendant was entitled under Ake was a structural defect because “the structural underpinnings of [the] trial, from beginning to end, were affected by his inability to present an effective defense.” Rey, 897 S.W.2d at 345. The same cannot be said of compelling a defendant to present his Ake motion in the presence of the State, revealing to at least some degree, the nature of his defensive theories. This is more like the erroneous admission of evidence. Appellant still got the benefit of an expert to assist in his defense. Disclosure to the State of some defensive theory is more amenable to an assessment of harm than the total deprivation of an expert to present an effective defense.
The question, then, is whether the trial court’s failure to allow appellant to make his Ake motion ex parte was harmless beyond a reasonable doubt.[9] Tex.R.App. Peog. 44.2. Appellant’s motion revealed that appellant had related to counsel facts about his history of drug abuse as well as a history of being abused as a child and alleged that these factors could excuse appellant’s conduct or be a factor in mitigation of punishment. The expert’s attached affidavit included the expert’s qualifications, a statement that her conclusions therein only amounted to a preliminary evaluation, her conclusions[*195] as to certain disorders from which appellant might be suffering, and a statement that a complete evaluation would require further testing and examination.
Although appellant’s motion states that his mental condition would be “a significant factor at both phases of the trial,” and that certain enumerated factors “could have contributed greatly to any participation of the defendant in this criminal episode,” we do not discern anywhere in the guilt/innoeence phase of trial where a legal defense based upon appellant’s mental condition was raised and argued. Nor does any psychiatric or psychological testimony appear at this phase of trial. Hence, we conclude beyond a reasonable doubt that the State gained no advantage from receipt of the Ake information prior to tidal and hold that disclosure of appellant’s motion and affidavit to the State did not harm appellant as to the first stage of the trial.
At punishment, the State offered no mental health experts. Appellant called his expert to the stand. While her qualifications and the facts and data underlying her opinion were at that point discoverable to the State pursuant to Criminal Rule of Evidence 705, we cannot conclude beyond a reasonable doubt that the premature disclosure of the matters to which this expert testified did not contribute to the jury’s verdict at punishment. The State was more prepared to cross-examine appellant’s expert, both in the Rule 705 hearing and before the jury, than it would have been without the earlier insight into this aspect of appellant’s case. While the evidence offered by the State at punishment was sufficient to support the jury’s verdict, it was not overwhelming. The State has failed to meet its burden of proving that the disclosure did not contribute to the jury’s verdict at punishment. Point of error three is overruled as to the guilt phase of trial, but sustained as to the punishment phase.
In his fourth point of error, appellant claims the trial court erred in permitting the admission of two photographs of the victim and the crime scene. Specifically, appellant says the photographs were irrelevant and their prejudicial impact substantially outweighed their probative value.
The admissibility of a photograph is within the sound discretion of the trial judge. Generally, a photograph is admissible if verbal testimony as to matters depicted in the photographs is also admissible. See Long v. State, 823 S.W.2d 259, 271-72 n. 18 (Tex.Crim.App.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). In other words, if verbal testimony is relevant, photographs of the same are also relevant. Testimony, and thus photographs, of the crime scene aid the jury in determining many things including the manner and means of the death of the victim, the force used, and sometimes even the identity of the perpetrator.
In the instant case, the photographs were relevant to show the manner and means of the victim’s death, the force used, and to some degree, the length of time the victim had been dead. Hence, the judge did not abuse his discretion in determining the photographs to be relevant.
Appellant further contends that the photographs were more prejudicial than probative and that the trial judge failed to engage in the proper balancing test. See Tex. R.CRIM. Evid. 403; Ramirez v. State, 815 S.W.2d 636, 646 (Tex.Crim.App.1991); Long, supra. When the photographs were introduced at trial, appellant objected to their admission and the trial judge overruled his objections without further comment. Once a Rule 403 objection as to prejudice versus probative value is invoked, the trial judge has no discretion as to whether or not to engage in the balancing test required by that rule. See Long, supra. However, a trial judge is not required to sua sponte place any findings he makes or conclusions he draws when engaging in this test into the record, nor did appellant request such to be affirmatively shown. Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995); McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). Rather, a judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies[*196] otherwise. See Santellan v. State, 989 S.W.2d 155, 173 (Tex.Crim.App.1997).
Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App.1990); see also Long, 823 S.W.2d at 271. A court may consider several factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. These factors include, but are not limited to: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, and whether the body depicted is naked or clothed. Long, swpra. The availability of other means of proof and the circumstances unique to each individual case must also be considered. Id.
The two photographs about which appellant complains are each approximately eight by ten inches in size.[10] One shows the clothed upper half of the victim’s body in the position she was found and the other shows the victim after she was rolled over onto a what appears to be a bodybag by investigators at the scene. The first photograph depicts the body and the surrounding area as they were originally seen by investigators. Some of the injuries inflicted upon the victim can be seen from this angle. The second photograph better shows the different injuries and the extent of the damage inflicted upon the victim. Both photographs are somewhat gruesome, primarily due to the amount of blood depicted. However, they are no more gruesome than the facts of the offense itself. Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App.1995).
While the appearance of a bodybag in the second photograph might be somewhat prejudicial, any prejudice caused does not substantially outweigh the probative value of the photograph. Further, because these photos are few in number, depict the wounds inflicted upon the victim, the relative location and position in which she was discovered, and were the subject of testimony at trial, their probative value is not substantially outweighed by their possible prejudicial effect. Point of error four is overruled.
We affirm the conviction but vacate the sentence and remand this cause for a new sentencing hearing. Article 44.29(c); Ransom v. State, 920 S.W.2d 288, 303 (Tex.Crim.App.1994).
McCORMIGK, P. J., concurs. HOLLAND, J., dissents.All references to articles are to those in the Texas Code of Criminal Procedure in effect at the time of the offense unless otherwise indicated.
Guillory stated that she entered the room as appellant hung up the telephone after his conversation with Morris and that appellant said, “Oh my God, this is all I need, I can’t believe [the victim] is dead."
Hines stated that he received the rings on the night of January 28 from a man his brother brought to the house. Hines subsequently identified a picture of appellant as the man accompanying his brother on that occasion.
In his motion, appellant stated that he needed the services of a mental health professional be[*192] cause his mental condition would be a significant factor at both phases of the trial. In particular, appellant noted that certain specifically enumerated “factors in the defendant’s personal history could have contributed greatly to any participation of the defendant in this criminal episode and could either excuse the defendant of the conduct charged or be a factor to be considered in mitigation of punishment.” Appellant did not specifically raise insanity or competency at trial. See Articles 46.02 and 46.03.
In Norton v. State, 930 S.W.2d 101 (Tex.App.— Amarillo 1996, pet. ref’d), this question was raised, but was never squarely addressed.
An ex parte hearing must be provided under federal law. 18 U.S.C. § 3006A(e)(l) states in pertinent part:
Upon Request.—Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application.
Furthermore, Federal Rule of Criminal Procedure 17(b) states in pertinent part:
Defendants Unable to Pay. The court shall order at any time that a subpoena be issued for service on a named witness upon an ex parte application of a defendant upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense.
Explaining the purpose behind this provision, one court stated that the ex parte provision of the rule was not intended to protect the defendant from opposition from the prosecutor; rather, it was intended to shield the theory of his defense from the prosecutor’s scrutiny. United States v. Meriwether, 486 F.2d 498 (C.A.Ala.1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3074, 41 L.Ed.2d 668 (1974).
Notwithstanding this federal statutory requisite, Ake was on certiorari to the United States[*193] Supreme Court out of the Oklahoma Court of Criminal Appeals. Thus, the quoted language was not premised upon the requisite in the federal provision.
A document that contains “comments by the attorney concerning his trial strategy or opinions of the strengths and weaknesses of the case” is privileged work product. Washington, 856 S.W.2d at 188. The Supreme Court has described the work-product doctrine as sheltering "[a]t its core ... the mental processes of the attorney, providing a privileged area within which [an attorney] can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975). The doctrine is a critical component of a properly functioning adversarial system:
Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoran-da, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the "Work product of the lawyer.” Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.
Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947).
See, e.g., Ex parte Moody, 684 So.2d 114, 120 (Ala.1996)(criminal defendant entitled to ex parte hearing on whether expert assistance is necessary, based on Fifth, Sixth, and Fourteenth Amendments to Constitution); Brooks v. State, 259 Ga. 562, 385 S.E.2d 81, 84 (1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1323, 108 L.Ed.2d 498 (1990)(indigent defendant who seeks appointment of expert is entitled to ex parte hearing on the motion); Arnold v. Higa, 61 Haw. 203, 600 P.2d 1383, 1385 (1979)(indigent defendant should be given opportunity to explain need for expenses in ex parte hearing upon request, so that defendant can particularize reasons without disclosing to State defensive theories); State v. Touchet, 642 So.2d 1213, 1219-21 (La.1994)(in-digent defendant is entitled to make initial ex parte application for government funding of expert assistance, but must make showing of preju[*194] dice in order to get ex parte hearing on the application); People v. Layer, 169 Mich.App. 105, 425 N.W.2d 714, 722-23 (1988)(holding unconstitutional statute requiring disclosure to State of witness’ names and expected testimony in order for indigent defendant to obtain payment of subpoena and witness fees); State v. Ballard, 333 N.C. 515, 428 S.E.2d 178, 180, cert. denied, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 438 (1993)(indigent defendant entitled to ex parte hearing on request for psychiatric expert); McGregor v. State, 733 P.2d 416 (Okla.Crim.App.1987)(hearing on Ake motion must be conducted ex parte), State v. Barnett, 909 S.W.2d 423, 429-30 (Tenn.1995)(ar parte hearing required in context of indigent’s request for psychiatric expert); but see State v. Apelt, 176 Ariz. 349, 861 P.2d 634 (1993), cert. denied, 513 U.S. 834, 115 S.Ct. 113, 130 L.Ed.2d 59 (1994)(indigent defendant not entitled to ex parte hearing on request for assistance); State v. Floody, 481 N.W.2d 242 (S.D.1992).
The Fifth Circuit has recognized that a rule requiring an ex parte hearing for an indigent’s request for a subpoena at government expense shields defensive theories from the State:
[T]he rule [previously] required that all defendants proceeding in forma pauperis who request subpoenas issued at government expense must support such requests with affidavits “in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense....” The difficulty with this procedure was that it required indigent defendants to reveal many of the theories of their defense to the prosecution, although defendants able to pay for witnesses were able to have blank subpoenas issued. F.R.Crim.P., Rule 17(a). To cure this inequitable situation, Congress amended the rule in 1966 to provide that applications for subpoenas by defendants unable to pay for them be made to the court ex parte. ... The ex parte provision of the rule was not intended to protect the defendant from opposition from the prosecutor; it was intended to shield the theory of his defense from the prosecutor’s scrutiny.... The government should not be able to obtain a list of adverse witnesses in the case of a defendant unable to pay their fees when it is not able to do so in the cases of defendants able to pay witness fees. When an indigent defendant’s case is subjected to pre-trial scrutiny by the prosecutor, while the monied defendant is able to proceed without such scrutiny, serious equal protection questions are raised, and it appears that a major reason for the amendment was to avoid such questions.
United States v. Meriwether, 486 F.2d 498, 505-506 (5th Cir.1973)(emphasis added).
The error here is constitutional in nature. Therefore, the case must be reversed "unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex.R.App. Proc. 44.2(a). This portion of the newly promulgated harmless error rule is identical to the previous Rule of Appellate Procedure 81(b)(2). Under this rule, the burden is on the State to prove that the error made no contribution to the defendant’s conviction or punishment.
We note that neither the actual photographs nor color photocopies were included in the record. If appellant believed that the colors in the actual photographs would have made a difference in our assessment of prejudice, it was incumbent upon him to ensure that either the original photographs or color photocopies were included in the record. Tex.R.App. Proc. 50(b) and (d); 53(a); Cf. Rule 51(d); Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App.1995). See also Webb v. State, 760 S.W.2d 263, 276 n. 19 (Tex.Crim.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989).
Dissent
dissenting.
I respectfully dissent. Although I agree with the majority that the trial court erred in not allowing appellant to make his threshold Ake showing ex parte, I am persuaded that, given the particular facts of this case, that error was harmless beyond a reasonable doubt as to appellant’s conviction and punishment. See Tex.R.App. Proe. 44.2(a).
In Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985), the Supreme Court of the United States held that the Due Process Clause of the Fourteenth Amendment entitles an indigent defendant to the appointment of a psychiatrist, at State expense, to assist the defendant in his defense when the defendant makes a threshold showing that the issue on which the psychiatric assistance is sought is going to be a significant factor at trial. The Ake Court explained, in relevant part:
This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on[*197] the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
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... We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that 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.
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... When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.
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We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
Ake v. Oklahoma, 470 U.S. at 76, 77, & 82-88, 105 S.Ct. at 1092, 1093, & 1096 (emphasis added).[1]
If the Supreme Court’s explicit language was not enough to make clear that due process entitles a defendant to make his threshold Ake showing ex parte, several other high courts have specifically so held, and with good reason. See, e.g., Ex parte Moody, 684 So.2d 114, 120 (Ala.1996); Brooks v. State, 259 Ga. 562, 385 S.E.2d 81, 84 (1989); McGregor v. State, 733 P.2d 416 (Okla.Crim.App.1987); State v. Barnett, 909 S.W.2d 423, 428-429 (Tenn.1995). That fundamental fairness, as guaranteed by the Due Process Clause, requires an ex parte hearing is apparent. “Indigent defendants who must seek state funding to hire a psychiatric expert should not be required to reveal their theory of defense when their more affluent counterparts, with funds to hire experts, are not required to reveal their theory of defense, or the identity of experts who are consulted, but who may not, or do not, testify at trial.” State v. Barnett, 909 S.W.2d at 428. “If ex parte hearings are not required, indigent defendants would, in effect, be penalized for requesting psychiatric expert assistance by being required to disclose [sensitive] information, and may be deterred from seeking it because of the breadth of disclosure required.” Id. at 429. Non-indigent defendants, on the other hand, would not face this dilemma.
Having said all that, I still believe that, under the particular facts of this case, the trial court’s error in not affording appellant an ex parte hearing was harmless beyond a reasonable doubt as to appellant’s conviction and punishment. The majority concedes the error was harmless with respect to appellant’s conviction. With respect to appellant’s punishment, the majority argues only that the error was not harmless because it resulted in the State having “premature” access to the defense psychotherapist’s initial affidavit, which contained (1) her qualifications, (2) her conclusions regarding certain mental disorders from which appellant might be suffering, (3) an admission that her conclusions were preliminary, and (4) a statement that a complete evaluation of appellant would require further examination. The majority concedes that, at the time the defense psychotherapist took the stand at the punishment stage, the State was entitled to the affidavit anyway under Texas Rule of Criminal Evidence 705(b), but the majority nevertheless insists that appellant was harmed because the State’s “premature” access to the affidavit rendered the State “more prepared” to crossexamine the psychotherapist than it otherwise would have been.
[*198] I disagree. I believe this ease presents a classic case of harmless error. The only real effect of the error here was to give the State early access to an affidavit of the defense’s expert, but the State was ultimately entitled to the affidavit anyway under Rule 705(b).
I would affirm the judgment of the trial court.
We later held that Ake applies to non-psychiatric experts, as well. Rey v. State, 897 S.W.2d 333, 337 (Tex.Crim.App.1995).
Dissent
dissenting.
Assume that it was error in this particular case for the trial judge to deny appellant’s motion for leave to file his motion for expert assistance ex parte. The question then arises: is it constitutional error, analyzed under Tex.R.App. P. 44.2(a), or non-constitutional error, analyzed under Rule 44.2(b)? The majority says that the error is constitutional in nature. Op. at fn 4.
Ake error is a violation of due process, but there was no Ake error in this ease—appellant was not denied an expert. The only way the error here could conceivably be considered to be constitutional would be if it somehow resulted in ineffective assistance of counsel. But if the error is ineffective assistance of counsel, in order to prevail appellant must meet the second prong of Strickland, i.e., he must meet the burden of establishing harm. If he meets that prong, he has exceeded what he needs to prove under either (a) or (b) of the harmless error rule, and he gets relief. Appellant would actually be better off if this is non-constitutional error because in that case his burden is less than the burden imposed by the second prong of Strickland. But in any event, the error should not be analyzed, as it is by both the majority and Judge Mansfield, under R. 44.2(a).
If the error here is ineffective assistance of counsel, I would find that appellant has failed to carry his burden of showing harm under Strickland. If the error is a simple violation of the workproduet doctrine, I would find it harmless under R. 44.2(b).
I also disagree with the majority’s treatment of appellant’s first point of error. In my opinion, the law does not require proof of the corpus delicti of the underlying felony in a capital murder case. See Monterrubio v. State, 916 S.W.2d 506 (Tex.Crim.App.1996), (Keller, J. dissenting.)