CAUSE NO. 1506256

THE STATE OF TEXAS	§             IN THE 177th DISTICT COURT
						§
V.						§ 		
						§
*******************			§	  OF HARRIS COUNTY, TEXAS 

NOTICE: THIS IS AN EX PARTE MOTION BEING PRESENTED TO
THE COURT EX PARTE BY THE DEFENDANT AND SHOULD BE 
SEALED

MOTION TO APPOINT EXPERT 
PURSUANT TO EX PARTE BRIGGS

Defendant _____________ moves the court to appoint an expert to assist her counsel in this case and for cause would show the court as follows:
I.
	Defendant is currently charged with Aggravated Assault with a Deadly Weapon, a 2nd degree felony. If convicted, defendant faces a punishment range of 2-20 years. 
II.
Defendant, through Counsel, needs to retain the services of John Jay Eftekhar, an accident reconstructionist to assist defense counsel in representing the Defendant in this case.  Article 26.05 C.C.P; Ake vs. Oklahoma, 470 U.S. 68 (1985); Richardson vs. State, 744 S.W.2d 65 (Tex.Crim.App. 1987); Article 1, Sections 10 and 19, Texas Constitution.  
In dicta, Ake suggests that the defendant ought to be allowed to make this preliminary showing ex parte.  The Texas Court of Criminal Appeals has held that due process requires that a defendant be allowed to proceed ex parte.  Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997).  As recognized in Williams, the ex parte procedure permits the accused to obtain necessary expert assistance without disclosing his work product, his defensive theories, or his suggested experts, to his adversary. It should also be noted that judges are not prohibited from “considering an ex parte communication expressly authorized by law.  “Tx. Code Jud. Conduct, Canon 3B(8)(e). See also Tex. Disciplinary R. Prof. Conduct 3.05(b)(lawyers are not prohibited from initiating ex parte communication where “otherwise permitted by law and not prohibited by applicable rules or procedure...”).  
As noted, the ex parte procedure sought in this motion is expressly authorized and permitted by the Texas Court of Criminal Appeals in Williams v. State.
III.
Undersigned Counsel was retained in this case and Defendant is now indigent. Attached as exhibit A is an affidavit of indigency. Attached as Exhibit B is affidavit of Defendant explaining why she is now currently indigent.  
Defendant currently works as a [occupation] at [company]. As shown by Exhibit A, Defendant has a gross income of __________ per month and expenses of at least _____________.
The Court of Criminal Appeals has held that just because a defendant is represented by retained counsel does not mean that she cannot at some point qualify as indigent. See Abdnor v. State, 712 S.W.2d 136, 142 (Tex. Crim. App. 1986) (“‘Outside sources such as relatives and even employers are not to be considered unless they are legally bound to pay for defendant's appellate expenses.’" (citation omitted) (emphasis added)).
In addition, the Court of Criminal Appeals has found retained attorneys ineffective when they have failed to seek funding for necessary experts in cases where defendants are indigent but where the attorneys are retained. Ex Parte Briggs, 187 S.W.3d 458, 463 (Tex. Crim. App. 2005).
The Court of Criminal Appeals has, held that a trial court can commit structural error when it fails to provide funds for a necessary expert in the case of an indigent defendant.     Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995). With the holding in Briggs, it would clearly be structural error to deny necessary funds for a now indigent Defendant represented by retained counsel.
IV.
Defense Counsel believes the appointment of this expert is necessary in order to provide defendant with effective assistance of Counsel. An issue to be highly contested in this case concerns the circumstances of the alleged incident.  Defendant in this case is charged with assaulting the complaining witness with her car; therefore, the accident reconstruction in this case is vital to the defense of Defendant.  Specifically, this expert will able to map out the entire accident scene and perform calculations of time on how fast the victim could have moved out and avoided the accident.  Additionally, this accident reconstructionist will be able to discern at what speed range the accident occurred, the amount of reaction time at that speed, the distance required to move in order to avoid the accident, provide an opinion of fault in the accident, whether this accident was unavoidable at the given speeds, etc.  All of these calculations would be essential to the Defendant’s case in chief and highly relevant and helpful to the jury.  Furthermore, if the State brings an accident reconstructionist, our accident reconstructionist will be able to assist defense counsel in any challenges to the calculations or evidence presented during direct testimony.  An accident reconstructionist is necessary and essential as defense counsel does not have a degree in physics or any qualifications to perform such calculations.
V.
WHEREFORE, the Defendant prays that this court appoint an expert and authorize the payment of reasonable fees and expenses for the expert relating to his/her case.

		Respectfully submitted,

		___________________________
		Mark Thiessen 
		Thiessen Law Firm
		733 E 12th ½ Street
		Houston, Texas 77008
		713-864-9000 Phone
		713-864-906 Fax
		Mark@thetexastrialattorney.com
		State Bar No. 

CERTIFICATE OF NON SERVICE

This is to certify that a true and correct copy of the foregoing Motion for Appointment of Expert was not served upon the attorney for the State and made ex parte pursuant to Williams v. State, 958 S.W2d 186, 191 (Crim. App. 1997, reh'g denied).

____________________________________
Mark Thiessen

CAUSE NO. 1506256

THE STATE OF TEXAS	§             IN THE 177th DISTICT COURT
						§
V.						§ 		
						§
KIMBERLY JONES			§	  OF HARRIS COUNTY, TEXAS 

ORDER

BE IT REMEMBERED on this day came on to be considered the Defendant's Ex Parte Motion for Appointment of Expert.  The Court having considered the pleadings makes the following Orders:
It is hereby ORDERED that the Defendant is authorized to employ, as experts for the defense, the following experts as listed:
1.	______________ [Expert], an expert in the field of ____________________, ___________________________ [Expert Address]

IT IS FURTHER ORDERED the County Auditor is Ordered to issue payment or payments, the total of payments not to exceed $_____________ to ______________ [Expert] as itemized invoices are received by the Auditor.  The expert must furnish a W-9 Form to the County Auditor before any payment will be issued.

It is further ORDERED the District Clerk and County Auditor are to seal this Ex Parte Order and the attached motion and that only defense Counsel shall be provided with a copy of said order or motion while the case is still pending until trial is completed
Signed ___________________________, 20_____.

____________________________________
Judge Presiding