John Spencer v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00217-CR
JOHN SPENCER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 31754CR
MEMORANDUM OPINION
John Robert Spencer was indicted for capital murder. The State did not seek the
death penalty. A jury convicted Spencer of the lesser-included offense of burglary by
entering a habitation and committing murder or manslaughter and sentenced him to
life in prison. In three issues, Spencer challenges the denial of his motion for
appointment of a mitigation expert. We affirm.
Spencer’s three issues challenge whether the trial court’s denial of his motion for
appointment of a mitigation expert, and subsequent refusal to revisit its ruling once the
jury found him guilty of a lesser offense, violated his right to effective assistance of
counsel provided by the Sixth Amendment of the United States Constitution and article
I, section 10 of the Texas Constitution.
An indigent defendant has a right to a court appointed expert under certain
circumstances. See Ake v. Oklahoma, 470 U.S. 68, 74, 105 S. Ct. 1087, 1091-92, 84 L. Ed. 2d
53 (1985). The defendant must make a preliminary showing that the expert assistance is
necessary to address a significant issue at trial. Moore v. State, 935 S.W.2d 124, 130 (Tex.
Crim. App. 1996). In doing so, he must offer more than “undeveloped assertions that
the requested assistance would be beneficial.” Id. We review the trial court’s ruling on
Spencer’s motion for abuse of discretion. See Deason v. State, 84 S.W.3d 793, 796 (Tex.
App.—Houston [1st Dist.] 2002, pet. ref’d).
Spencer sought appointment of an expert to investigate and explain his
psychological and social history. He planned to present this testimony as mitigating
evidence at punishment. The trial court denied the motion and wrote on the face of its
order: “Punishment fixed by law. State has waived death penalty. No showing state
has retained penalty expert. Testimony sought is irrelevant and not admissible.” On
appeal, Spencer argues that an expert could have explained the “dynamics of a ‘love
triangle’”1 and its impact on him, his state of mind at the time of the offense; and his
ability to be a good probationer. He contends that the trial court’s ruling prevented
1 Spencer was convicted of killing Randy Glasser, who was dating Spencer’s girlfriend Wendy.
Spencer v. State Page 2
defense counsel from gathering and presenting mitigating evidence that may have
encouraged the jury to give him a lighter sentence.
Spencer’s motion, however, was insufficient to establish his need for an expert.
In cases holding that a sufficiency showing was not made under Ake, the defendant
typically has failed to support his motion with (1) affidavits or other evidence in
support of his defensive theory, (2) an explanation as to what his defensive theory was
and why expert assistance would be helpful in establishing that theory, or (3) a showing
that there was reason to question the State’s expert and proof. Rey v. State, 897 S.W.2d
333, 341 (Tex. Crim. App. 1995). Spencer’s motion falls within the first category. See id.;
see also Williams v. State, 958 S.W.2d 186, 193-94 (Tex. Crim. App. 1997) (“We have
indicated that a defendant needs to offer affidavits or ‘evidence’ in making this
showing.”). He attached no expert affidavit or other evidence to support his motion,
offering nothing more than counsel’s undeveloped assertions.2 See Williams, 958 S.W.2d
at 194-95 (Motion seeking appointment of expert to evaluate Williams’s history of drug
abuse and abuse as a child on grounds that “these factors could excuse [his] conduct or
be a factor in mitigation of punishment” was supported by expert affidavit); see also
Smith v. State, 131 S.W.3d 928, 930 (Tex. App.—Eastland 2004, pet. ref’d) (“Appellant
did not present any affidavits or evidence in support of his motion;” he “only offered
his counsel’s undeveloped assertions that appellant needed an expert.”). He failed to
2
Spencer does not argue that counsel was ineffective for failing to attach evidence to the motion.
Spencer v. State Page 3
make a sufficient showing under Ake. See Rey, 897 S.W.2d at 341; see also Smith, 131
S.W.3d at 930. The trial court was not required to revisit its ruling.3
Accordingly, we cannot say that the trial court abused its discretion by denying
Spencer’s motion for a mitigation expert or by failing to revisit its ruling on the motion.
We overrule Spencer’s three issues and affirm the trial court’s judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed July 29, 2009
Do not publish
[CRPM]
* (Chief Justice Gray does not join the opinion of the Court but concurs in the
judgment to the extent that it affirms the trial court’s judgment. A separate opinion will
not issue.)
3 We also note that the record does not indicate that the trial court was asked at trial to revisit its
ruling or was alerted to this issue in Spencer’s motion for new trial.
Spencer v. State Page 4