                            NUMBER 13-09-00360-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


PAUL BURTON LEE,                                                            Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION

               Before Justices Yañez, Rodriguez, and Garza
                Memorandum Opinion by Justice Rodriguez

      Appellant Paul Burton Lee challenges his conviction for sexual assault of a child.

See TEX . PENAL CODE ANN . § 22.011(a)(2)(A) (Vernon Supp. 2009). After pleading guilty,

Lee was sentenced to nineteen years' incarceration. By one issue, Lee argues that the trial

court erred in denying his motion for continuance for an insanity examination. We affirm.
                                              I. BACKGROUND

        Lee was indicted for sexual assault of a child and prohibited sexual conduct in

connection with alleged sexual abuse committed against his adolescent daughter, K.K.L.

See id. §§ 22.011(a)(2)(A), 25.02(a)(1). During the course of the alleged abuse, K.K.L.

became pregnant and had a baby. It was later confirmed that Lee fathered the baby.

        At the bench trial, the State abandoned the prohibited sexual conduct count and

proceeded only on the charge of sexual assault of a child. After the trial court admonished

Lee regarding the consequences of his plea, Lee pleaded guilty to the offense. At this

point, before the trial court proceeded to punishment, Lee's counsel asked for a recess to

confer with Lee. When they returned, Lee's counsel orally moved for a continuance,

stating,

        In my discussions with my client, I'm hearing some new things that I have not
        heard before that, unfortunately, at this late hour, have raised a question
        about my client's sanity at the time this offense was committed. And I would
        ask to continue this, to have my client examined. I'm not trying to delay it;
        however, based upon new things I heard this morning, new things from my
        client, I have a real concern that my client be examined for sanity before we
        continue further, your Honor. I'm not sure it's proper to enter a plea at this
        time.

The State opposed the motion for continuance, asserting that defense counsel had ample

opportunity to discover sanity issues.                The trial court then denied the motion for

continuance.1

        The trial court proceeded to hear evidence and argument on punishment. The trial

court then took the matter under advisement and, when the parties reconvened two days


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          Lee asked the trial court if he could m ake an offer of proof, and the trial court stated that he could
do so later. Although Lee then re-urged his m otion for continuance before the start of the punishm ent
evidence, he did not re-urge his request to m ake an offer of proof or obtain a ruling from the trial court on his
original request.

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later, sentenced Lee to nineteen years' incarceration in the Institutional Division of the

Texas Department of Criminal Justice. This appeal followed.

                                        II. DISCUSSION

       By one issue, Lee argues that the trial court erred in denying his motion for

continuance. Specifically, Lee argues that the trial court denied him his due process right

to have a competent psychiatrist evaluate him and assist in the preparation of his defense.

See Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (holding 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"). However, we do not reach Lee's due process argument because, as a

threshold matter, he failed to meet the procedural requirements for raising an insanity

defense.

       The penal code provides that insanity may be raised as a defense to a criminal

prosecution. TEX . PENAL CODE ANN . § 8.01 (Vernon 2003). However, the code of criminal

procedure requires that the defendant give notice of his intention to raise the defense at

least twenty days before the case is set for trial. TEX . CODE CRIM . PROC . ANN . art.

46C.051(a)-(b) (Vernon 2006). The trial court may, on a finding of good cause for failure

to serve timely notice, still allow evidence of insanity. Id. art. 46C.052 (Vernon 2006). We

review the court's determination of good cause for an abuse of discretion. See Wagner

v. State, 687 S.W.2d 303, 306 (Tex. Crim. App. 1984) ("The trial court has the discretion

to decide whether good cause is present for failure to file timely."); Shaffer v. State, 590

S.W.2d 490, 491 (Tex. Crim. App. 1979) (same); see also Shavers v. State, No.



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10-02-00354-CR, 2004 WL 575386, at *1 (Tex. App.–Waco Mar. 17, 2004, no pet.) (mem.

op., not designated for publication).

       Lee filed no notice of his intention to raise an insanity defense until the day of his

bench trial; he therefore failed to comply with the notice requirement under article 46C.051.

See TEX . CODE CRIM . PROC . ANN . art. 46C.051(a)-(b). Neither did the trial court find that

Lee showed good cause for his failure to serve the requisite notice, which would have then

allowed the court to consider evidence of insanity. See id. art. 46C.052. Moreover, in our

own review of the record, we have found no evidence of good cause for Lee's failure to

timely serve his notice other than his counsel's bare assertions that he had not discovered

the potential insanity issue until the morning of the trial. See Newsome v. State, 235

S.W.3d 341, 343 (Tex. App.–Fort Worth 2007, no pet.) (refusing to allow an untimely notice

of insanity defense where the defendant produced no evidence of good cause). Because

no good cause was shown for Lee's failure to give timely notice of his intention to raise an

insanity defense, we conclude that the trial court acted within its discretion in refusing Lee's

motion for continuance. See Wagner, 687 S.W.2d at 306. Lee's sole issue is overruled.

                                        III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                           NELDA V. RODRIGUEZ
                                                           Justice

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

Delivered and filed the
8th day of July, 2010.


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