                              NUMBER 13-12-00068-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

JOSEPH MICHAEL LEMKE,                                                                    Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                      Appellee.


                         On appeal from the 9th District Court
                           of Montgomery County, Texas.


                             MEMORANDUM OPINION1
                   Before Justices Garza, Perkes, and Longoria
                    Memorandum Opinion by Justice Perkes
        Appellant Joseph Michael Lemke appeals his conviction of aggravated sexual

assault, a first-degree felony, see TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West 2011),

enhanced by two prior felony convictions, see id. § 12.42 (West 2011). After the jury

found him guilty, the trial court assessed punishment at life imprisonment in the Texas

        1
           This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
Department of Criminal Justice, Institutional Division. By two related issues, appellant

argues the trial court erroneously denied his (1) motion for continuance and (2) motion for

appointment of expert assistance. We affirm.

                                         I. BACKGROUND2

        In March 2010, a grand jury indicted appellant for aggravated sexual assault

relating to appellant’s alleged digital penetration of a child younger than fourteen.3 In

February 2011, appellant moved to discover information that was collected during the

Texas Department of Family and Protective Services investigation of the case. On May

26, the State filed a notice of its intent to call certain witnesses, including Lawrence

Thompson Jr., an “Expert Relating to Sexual Abuse Victims and Offenders.”

        On August 26, 2011, appellant filed a motion for appointment of expert assistance

and a motion for continuance. Appellant’s trial began on August 29, at which point

appellant argued his two motions. The trial court denied the motions.

   II. MOTIONS FOR CONTINUANCE AND TO APPOINT EXPERT ASSISTANCE

        By his first issue, appellant argues the trial court erred by denying his motion for

continuance. Appellant requested a continuance to consult with an expert. Appellant’s

second issue claims the trial court erred by denying his motion for expert assistance.

Given the interrelatedness of the two motions, we review appellant’s two issues together.4


        2
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        3
           Appellant was indicted in a second count for indecency with a child by contact, but that count
was later converted into a lesser-included count rather than an independent one.
        4
           Appellant presented the two motions together before the trial court and addressed the two
issues together in his brief.
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A.     Standards of Review and Applicable Law

       1.     Motion for Continuance

       We review the trial court’s denial of a motion for continuance for abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 775 (Tex. Crim. App. 2007). To establish

abuse of discretion, an appellant must show that the denial of his motion resulted in actual

prejudice. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000), superseded by

statute on other grounds as recognized by Coleman v. State, No. AP-75478, 2009 WL

4696064, at *11 & 11 n.46 (Tex. Crim. App. Dec. 9, 2009) (not designated for publication);

Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) (en banc); Duhamel v.

State, 717 S.W.2d 80, 83 (Tex. Crim. App. 1986) (en banc).

       A continuance is not a matter of right. See TEX. CRIM. PROC. CODE ANN. art.

29.06(6) (West 2006); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995)

(en banc). Moreover, the court of criminal appeals has imposed a “diligence requirement

as a precondition to continuance based on the need for additional trial preparation.”

Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010) (explaining Wright, 28

S.W.3d at 533). A showing of diligence in attempting to secure an expert is required

even if the appellant shows prejudice resultant from the trial court’s refusal of a

continuance. See id.; Wright, 28 S.W.3d at 533.



       2.     Motion for Expert Assistance

       We review a trial court’s denial of a motion for expert assistance for an abuse of

discretion. See Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998) (en banc);


                                             3
Perales v. State, 226 S.W.3d 531, 536 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

An abuse of discretion occurs only when the trial judge’s decision was so clearly wrong as

to lie outside the zone within which reasonable persons might disagree. Zuliani v. State,

97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

       Ake v. Oklahoma provides that an indigent defendant is entitled to expert

assistance if “the expert can provide assistance which is likely to be a significant factor at

trial.” Ex parte Jimenez, 364 S.W.3d 866, 876 (Tex. Crim. App. 2012) (quoting Ake v.

Oklahoma, 470 U.S. 68, 74 (1985)). Three interests must be balanced in determining

whether the State must provide such access:

       The first is the private interest that will be affected by the action of the State.
       The second is the governmental interest that will be affected if the
       safeguard is to be provided. The third is the probable value of the
       additional or substitute procedural safeguards that are sought, and the risk
       of an erroneous deprivation of the affected interest if those safeguards are
       not provided.

Id. (quoting Ake, 470 U.S. at 77).

       On the other hand, “[t]he Supreme Court has stated that an indigent defendant is

not entitled to the appointment of experts when he offers ‘little more than undeveloped

assertions that the requested assistance would be beneficial.’ He must provide concrete

reasons for requiring the appointment of any particular expert.” Id. at 877–78 (citing

Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985)). The court of criminal appeals

referenced Professor LaFave’s procedural guidelines: “The defense must identify the

expert, explain what the expert will do, and explain why that will be important in

representing the defendant.” Id. at 878 (quoting W AYNE R. LAFAVE, CRIMINAL PROCEDURE

§ 11.2(e) at 654 (3d ed. 2007)).        For these reasons, the court of criminal appeals

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“reiterated the importance of presenting affidavits or other information to the trial judge in

making the required threshold showing.” Id. at 881–82 (citing Williams v. State, 958

S.W.2d 186, 193 (Tex. Crim. App. 1997) (en banc)).

B.     Discussion

       Appellant moved to continue the trial so that he could consult Carmen Petzold, “a

competent and qualified specialist in the field of forensic psychology or psychiatry.” In

his motion for expert assistance, appellant claimed Petzold was “necessary to enable

[appellant] to prepare effectively for trial, present favorable evidence[,] and to

cross-examine the [S]tate’s witnesses. The evidence which will be the subject of expert

opinion is critical to a determination of the child’s testimony.”

       Appellant presented his two motions to the trial court on the first day of trial.

Appellant wanted a continuance so his expert could review “CPS files and videos of the

multiple children,” noting that the expert review “would have to take several days.” The

trial court asked, “[W]hy haven’t you already accomplished that?” Appellant responded

that the State’s July 22 delivery of the CPS files, which appellant requested in February,

had left the defense with only fifteen days to consult an expert (the deadline for appointing

experts was 21 days before trial began). Appellant asserted, “At this point, the State has

already mentioned they are going to have an expert testify regarding this child’s—

regarding the child’s statement. We think it’s only fair that he [appellant] be able and

allowed to have that same type of expert for that basis.”            The trial court denied

appellant’s motions.




                                              5
       Appellant’s Ake motion did not specify to the trial court what, if anything, the expert

would potentially glean by reviewing the case files. Of course, we do not discount an

indigent defendant’s right to have an expert available to “consult with counsel, to interpret

records, to prepare counsel to cross-examine State’s witnesses, and generally to help

present appellant’s defense in the best light.” Ex parte Jimenez, 364 S.W.3d at 877

(quoting DeFreece v. State, 848 S.W.2d 150, 161 n. 7 (Tex. Crim. App. 1993) (en banc)).

The defendant, however, must nevertheless make “a sufficient threshold showing of the

need for expert assistance on a particular issue.” Id. Here, appellant’s mere affirmation

to the trial court that he wanted an expert to review “all the facts . . . that have been

developed by the State” was not sufficiently concrete to warrant appointing an expert.

See id. at 878.

       Moreover, in the written motion, appellant only conclusorily claimed an expert was

necessary; he did not clarify how or why, and he did not attach any affidavits evidencing a

need for expert assistance.

       In cases holding that a sufficient showing was not made under Ake, the
       defendant typically has failed to support his motion with affidavits or other
       evidence in support of his defensive theory, an explanation as to what his
       defensive theory was and why expert assistance would be helpful in
       establishing that theory, or a showing that there was reason to question the
       State’s expert and proof.

Id. at 881–82 (quoting Rey v. State, 897 S.W.2d 333, 341 (Tex. Crim. App. 1995) (en

banc)). We hold appellant failed to provide concrete reasons warranting continuing trial

for the appointment of an expert and offered “little more than undeveloped assertions that

the requested assistance would be beneficial.” See Ex parte Jimenez, 364 S.W.3d at

878 (internal quotation omitted). Accordingly, the trial court’s denial of the motion for

                                              6
expert assistance was not so clearly wrong as to lie outside the zone of reasonable

disagreement. See Zuliani, 97 S.W.3d at 595. The trial court did not abuse its discretion

in denying appellant’s motion for expert assistance.

       Likewise, the trial court did not abuse its discretion in denying appellant’s motion

for continuance, especially given that the trial court properly denied his motion for expert

assistance.   Appellant’s assertion that the defense should be entitled to an expert

because the State intended to use one did not inform the trial court why appellant had

failed to already secure an expert. The State divulged its intent to use an expert and the

expert’s specialty in May 2010, leaving appellant ample time to locate an expert.

Appellant’s complaint about the tardy delivery of CPS files did not explain why he failed to

earlier seek expert assistance, a continuance, or even the court’s permission to alter or

waive the twenty-one day pre-trial deadline under the circumstances. Appellant did not

satisfy the diligence precondition to a continuance. See Gonzales, 304 S.W.3d at 843;

Wright, 28 S.W.3d at 533.       The trial court did not abuse its discretion in denying

appellant’s motion for continuance.

       We overrule appellant’s first and second issues.

                                   III. CONCLUSION

       We affirm the trial court’s judgment.

                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
24th day of October, 2013.

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