                                 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
