                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00004-CR



         SEAN OWENS-TOOMBS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 188th District Court
                Gregg County, Texas
              Trial Court No. 46568-A




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                           MEMORANDUM OPINION
         Sean Owens-Toombs pled guilty to a charge of aggravated robbery and requested

punishment be assessed by a jury.                The jury recommended a sentence of fifty-five years’

imprisonment, and the trial court assessed punishment accordingly. On appeal, Owens-Toombs

claims error in the trial court’s refusal to appoint a mitigation expert to assist in preparation for his

punishment case. We affirm.

I.       Ake and an Accused’s Right to Expert Witnesses

         An indigent accused person has the right, in appropriate situations, to the appointment of

an expert witness to assist in presenting his defense. See Ake v. Oklahoma, 470 U.S. 68 (1985).

In Ake, the defendant was charged with murder, and the State sought the death penalty. 1 The trial

court rejected Ake’s pretrial request for evaluation by a psychiatrist or funds to hire a psychiatrist

to examine Ake’s sanity at the time of the offenses. 2 Because Ake’s “mental state at the time of

the offense was a substantial factor in his defense,” id. at 86, and because Ake made a “threshold

showing to the trial court” of this fact, id. at 82, the United States Supreme Court held that Ake

was entitled to a “competent psychiatrist who w[ould] conduct an appropriate examination and

assist in evaluation, preparation, and presentation of the defense,” id. at 83. Thus, in Ake, the




1
 Ake was charged with, and convicted of, two murders and two counts of shooting with intent to kill. He was assessed
the death penalty on the two murder convictions and 500 years’ confinement on the two shooting charges. Ake, 470
U.S. at 73.
2
 At arraignment, Ake’s bizarre behavior caused the trial court to sua sponte order a psychiatric evaluation. Id. at 71.
Ake was committed to a state psychiatric hospital. Id. He was examined and found not competent to stand trial. Id.
After six weeks, it was found he could, if specifically medicated, be stabilized and competent to stand trial. Id. at 71–
72. None of the state’s psychiatric examinations considered Ake’s sanity at the time of the offenses. Id. at 72.

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Supreme Court established that, in certain circumstances, a defendant charged with a criminal

offense has a right to the appointment of expert services at the State’s expense upon proper request.

II.    Owens-Toombs Failed to Make Threshold Showing

       A trial court’s ruling on a defendant’s request for a court-appointed expert is reviewed for

an abuse of discretion. Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998). One

seeking state-funded assistance of an expert witness must “make a sufficient threshold showing of

the need for the expert’s assistance.” Id. at 286–87. A defendant who “offer[s] little more than

undeveloped assertions that the requested assistance would be beneficial” fails to show a due

process violation in the trial court’s denial of the requested expert. Caldwell v. Mississippi, 472

U.S. 320, 323 n.1 (1985). The Texas Court of Criminal Appeals has held that one who “offer[s]

nothing but undeveloped assertions that the requested assistance would be beneficial” fails to make

a threshold showing of need for an appointed expert. Moore v. State, 935 S.W.2d 124, 130 (Tex.

Crim. App. 1996); see also Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995).

       In Rey, the defendant produced an affidavit that “seriously questioned the findings in the

autopsy report as to the mechanism of death and raised questions about the thoroughness and

quality” of the pathologist who performed the autopsy. Rey, 897 S.W.2d at 340. Accordingly, the

Texas Court of Criminal Appeals ruled that the trial court erred in denying Rey’s motion for

appointment of an expert witness. Id. at 343.

       Here, Owens-Toombs filed a pretrial motion for appointment of an expert witness. The

motion requested appointment of a licensed psychologist, Jennifer Russell, “for the purpose of

completing and drafting a mitigation report, as well as testifying at [Owens-Toombs]’ trial.” He

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provided no affidavit, argument, or explanation as to how Russell’s testimony might be beneficial

or helpful to his case. Also, there is no indication that Owens-Toombs sought a hearing to present

evidence on his need for an expert at the state’s expense. Consequently, the trial court could easily

have found Owens-Toombs failed “to make a sufficient threshold showing of the need for the

expert’s assistance.” Griffith, 983 S.W.2d at 286–87. There being no abuse of discretion by the

trial court, we overrule Owens-Toombs’ point of error.

       The trial court’s judgment and sentence are affirmed.




                                              Ralph K. Burgess
                                              Justice

Date Submitted:        June 24, 2019
Date Decided:          June 27, 2019

Do Not Publish




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