Order on Defendant’s Ex Parte Motion 
for Expert and Investigative Assistance
Per Ake v. Oklahoma, 105 S.Ct. 1087 (1985)
by Richard Davis
CAUSE NO. _____
THE STATE OF TEXAS	§	IN THE DISTRICT COURT
v.	§	____________ JUDICIAL DISTRICT
____________________________	§	_______________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW, the indigent Defendant, _______________, by counsel, and pursuant to Tex. Code Crim. Proc. arts. 26.05(a) and 26.052(g), the 5th, 6th, 8th and 14th Amendments to the United States Constitution and Article I, Sections 10, 13 & 19 of the Texas Constitution and other authority cited herein, moves this Court to enter a finding that there is a reasonable necessity for expert assistance and funding in support of Defendant’s right to defend against the charge of Murder brought by the State of Texas. In support thereof, this Defendant would show:

I.
(a)	
Defendant has been charged with the felony offense of Murder. As will be specifically set out herein, the accused’s mental health, prior to and at the time of the alleged offense, will be a significant factor at trial and is relevant to issues that must be decided by the jury.
(b)	
Expert assistance will be necessary to prepare and present this evidence in Defendant’s defense. The assistance of the requested expert will help to satisfy the need for reliability in the trial process that is required by the 8th and 14th Amendments to the United States Constitution and the United States Supreme Court (see Woodson v. North Carolina, 428 U.S. 280, 305 (1976)), and under the Texas Constitution.
(c)	
This Court has determined that Defendant is indigent. His counsel is unable to retain any expert assistance due to his client’s indigent status.

II.
(a)	
The funding that is requested will provide Counsel with an essential tool to defend against the charges brought by the State of Texas. Defendant is entitled to such expert assistance upon a threshold showing that the assistance sought is relevant to a significant factor at trial. Such assistance should include the determination of any defenses that are viable, the presentation of testimony and the assistance in preparing the cross-examination of the State’s psychiatric witnesses. Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985). This holding of the U.S. Supreme Court has been followed by the Texas Court of Criminal Appeals (see De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993)).
(b)	
Appointment of expert assistance should be made regardless of the expert’s field of expertise as there is no principled way to distinguish between psychiatric and non-psychiatric experts. The denial of the appointment of an expert under Ake amounts to “structural error” which cannot be evaluated for harm. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995).
(c)	
The failure to grant funding for this assistance will call into question the fundamental fairness of Defendant’s trial, his right to confront and cross-examine witnesses, and will deny him his 6th Amendment right to the effective assistance of this counsel. The assistance that is to be provided by the requested expert is further made relevant by Tex. Code Crim. Pro. arts. 37.071 (2)(e)(1) & (f)(3) and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (overruled in part on other grounds); and Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987).

III.
(a)	Defendant’s mental health will be a significant factor at trial because:
	(1)	
Defendant was sexually abused as a child. The alleged victim was a convicted felon who had sexually abused children. The Defendant’s reaction to and state of mind as a result of any altercation with (if any) or conversation with (if any) the victim may have triggered a severe psychological reaction in the Defendant causing him to not know whether his conduct was right or wrong as a result of a mental illness or defect.
	(2)	
If the Defendant was insane at the time of the alleged offense, then he cannot be convicted of the charge of Murder, but could only be found not guilty or not guilty by reason of insanity.
	(3)	
Even if the Defendant was sane at the time of the alleged offense, his profoundly disturbed mental state caused by his previous sexual victimization as a child may render him culpable of only a lesser included offense, or may constitute mitigating evidence at a punishment phase of trial, if any.
(b)	
Movant requests the Court to approve funding for Dr. ________________, a psychologist. Counsel does not provide her curriculum vitae because he is aware that this Court has appointed her in the past for similar evaluations.
(c)	The requested expert will assist the defense in the following manner:
	(1)	
The expert will perform a psychological evaluation of the Defendant to determine his mental state at the time of the charged offense.
	(2)	
The expert will serve as a rebuttal expert to the State’s psychological evaluation of the Defendant, should the facts require such rebuttal.
(d)	Movant expects to use the assistance provided by the expert in the following manner:
	(1)	
To show that the Defendant has suffered profound psychological problems for many years,
	(2)	
To show that the Defendant was in a vulnerable mental state immediately before the alleged offense occurred, and
	(3)	To prove that the Defendant was insane at the time of the alleged offense.
(e)	
It is estimated that the amount of time and evaluation required for Dr. __________’s evaluation may cost up to a total of $2500.00.
(f)	
Prior to submitting any statement to the County Auditor for payment to this expert, counsel will review the work of the expert to determine that the time devoted to the case was (i) reasonable, (ii) necessary and (iii) consistent with this Court’s authorization.

IV.
	This motion is made ex parte pursuant to Tex. Code Crim. Pro. art. 26.052(f). It would be fundamentally unfair to require this indigent Defendant to divulge to the prosecution the nature of this motion for funding which will necessarily inform the State of defensive theories of mitigation. Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997). If the undersigned counsel were retained by the accused, there would be no requirement that the State be notified of the retention of expert assistance. Accordingly, counsel moves that the Court’s Order, finding that a threshold showing of necessity has been made, also contain the following language:
THIS ORDER, AND DEFENDANT’S EX PARTE MOTION FOR FUNDING, SHALL BE SEALED IN THE REC­ORD AND PLACED IN AN ENVELOPE IN THE RECORD AND SHALL BE SEEN BY AND DISTRIBUTED TO DEFENSE COUNSEL AND THIS COURT ONLY.

	WHERFORE PREMISES CONSIDERED, Movant prays that upon evidentiary hearing, this Court:
	(1)	
Find that a threshold showing has been made, that the requested mental health expert is an essential tool in the presentation of a defense against the charge;
	(2)	
Approve initial funding in the amount of up to $2500.00 for such assistance, in addition to out of pocket expenses;
	(3)	
Order that this motion and the Court’s Order be sealed as prayed for herein; and 
	(4)	
That the Movant have such other and further relief as he may show himself to be justly entitled.

	Respectfully submitted,
	Richard W. B. “Rick” Davis, P.C.
	104 S. Texas Ave.
	Bryan, TX 77803
	(979) 779-4357
	(888) 435-4080

	By: ____________________________________
	Rick Davis
	State Bar No. 05539100
	Attorney for _______________________

CAUSE NO. _____
THE STATE OF TEXAS	§	IN THE DISTRICT COURT
v.	§	_____________ JUDICIAL DISTRICT
____________________________	§	________________ COUNTY, TEXAS

ORDER ON DEFENDANT’S EX PARTE MOTION FOR 
EXPERT AND INVESTIGATIVE ASSISTANCE
Per Ake v. Oklahoma, 105 S.Ct. 1087 (1985)
	
	On the _____ day of ____________ 2010, came on for consideration Defendant’s Ex Parte Motion for Expert and Investigative Assistance per Ake v. Oklahoma. The Court, having considered the matter, is of the opinion that such Motion should be granted.
	Accordingly, it is ORDERED that Defendant’s counsel is authorized to incur expenses for Expert and Investigative Assistance up to the amount of ________________ which will be reimbursed or paid to the expert upon order of the Court.
THIS ORDER, AND DEFENDANT’S EX PARTE MOTION FOR FUNDING, SHALL BE SEALED IN THE RECORD AND PLACED IN AN ENVELOPE IN THE RECORD AND SHALL BE SEEN BY AND DISTRIBUTED TO DEFENSE COUNSEL AND THIS COURT ONLY.

	Signed this _______ of ____________ 2010.

	________________________________
	JUDGE PRESIDING