Lackey v. State

Citation638 S.W.2d 439
Decision Date07 April 1982
Docket NumberNo. 61094,61094
PartiesClarence Allen LACKEY, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
OPINION

McCORMICK, Judge.

Appellant, after being found competent to stand trial in an Article 46.02, Section 4, V.A.C.C.P., jury competency hearing, was convicted of capital murder. Punishment was assessed at death. The sufficiency of the evidence is not challenged.

Diane Kumph was abducted from her Lubbock apartment shortly before dawn on July 31, 1977. Later that day, her partially nude body was discovered beside a dirt road outside of Lubbock, near appellant's house. It appeared Kumph had been raped. She had been severely beaten. Her neck, face, arms, chest, back and legs were covered with bruises. Her throat had been slashed. This caused her death.

A policeman who responded to a neighbor's report testified that it appeared that the front door of Kumph's apartment had been kicked open. There were indications that a violent struggle had occurred in her apartment.

A fingerprint expert testified that a latent fingerprint discovered on a cigarette package found in the victim's bed belonged to appellant. The brand was the same brand as a pack found on appellant at the time of his arrest. Blood found on appellant's boots matched Kumph's blood type. Secretor analysis showed that the individual whose semen was found in Kumph was a secretor and had the same type O blood as did appellant. An expert testified that hairs found on Kumph's body were similar to appellant's and marks found on the door of Kumph's apartment were very similar to the heel print of appellant's boot. A person living in the adjoining apartment testified that he was awakened in the early morning, went outside, and saw a man matching appellant's physical description driving away in a white pickup. A woman was slumped over in the seat. The truck was missing a hubcap from the right rear wheel. Appellant, at the time of the murder, had use of a white pickup that was missing a hubcap from the right rear wheel. Appellant was identified by an acquaintance as having been in this truck, driving in Lubbock at approximately 5:00 a.m. on the morning of Kumph's abduction.

Another resident of the adjoining apartment testified that she was awakened that morning by loud banging, and screams of "help me" and "get off me" coming from Kumph's apartment.

Appellant's roommate, Carrol Johnson, testified that she had been at work all night the night of the murder. When she returned home that morning, about 7:30 a.m., appellant was not home, but there was fresh blood all about the house. Shortly after her return, appellant phoned Johnson and said he was doing some laundry at a laundromat. He arrived at the house a half hour later with a bedspread and sheets he had washed. He burned a throw rug. Later that day, as Johnson and appellant were discussing radio reports of the murder of Kumph and the search for a suspect, appellant admitted to Johnson: "Baby, I've got to tell you something--I'm the one they're looking for."

More incriminating evidence was seized in a search of appellant's house and the white truck. Leaves found on Kumph's face were very similar to leaves found in the truck, according to expert testimony. Hair taken from the truck was very similar to Kumph's, according to the expert. Sweepings from appellant's apartment revealed hair that was very similar to Kumph's, according to more expert testimony. Blood found throughout appellant's home matched Kumph's blood type, including that found on a blood soaked mattress. Blood was also found on the porch and on the exterior of appellant's house. That blood matched Kumph's type. Blood was found on a knife located in the house. Blood found on the pickup matched the deceased's type. The case was submitted to the jury on a circumstantial evidence charge.

Appellant contends that the trial court erred in refusing to appoint a psychiatrist of appellant's choice to examine appellant. Appellant was indigent. On September 29, 1977, a pre-trial motion was filed by appellant requesting that one of three named psychiatrists be appointed to examine appellant. The motion went on to state, "Failing this, Defendant prays for commitment to a reputable mental hospital for complete psychiatric examination." Appellant, at that time, was confined in the Lubbock County jail. Two of the experts he had requested practiced in Dallas and one practiced in Los Angeles. The trial court granted the alternative portion of appellant's motion by ordering appellant be taken to the Big Spring State Hospital for evaluation. The appellant made no objection to this procedure when it was ordered. Since appellant's motion was granted, nothing is presented for review. Regardless, it is not error to refuse a defendant's request for examination by a particular psychiatrist and to substitute an alternative expert. In Payne v. Thompson, 622 F.2d 254 (6th Cir. 1980), cert. denied 449 U.S. 1063, 100 S.Ct. 788, 66 L.Ed.2d 607 (1981), the court said:

"Nor can we find a federal constitutional violation in the state trial court's refusal to provide expert witness and psychiatric examination by witness of his (defendant's) own choosing. See U. S. ex rel Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953)." 622 F.2d at 255.

See Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978), cert. denied 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978). In that case, the Fourth Circuit stated: "... [W]e are of the opinion, on authority, that there exists no constitutional right to the appointment of a private psychiatrist of the defendant's own choosing at public expense." 572 F.2d at 445. The ground is overruled.

Appellant also complains that the court erred in refusing him more than $500 in funds for investigation and expert testimony pursuant to Article 26.05, V.A.C.C.P. Article 26.05, supra, provides, in pertinent part:

"Sec. 1. A counsel appointed to defend a person accused of a felony or a misdemeanor punishable by imprisonment, or to represent an indigent in a habeas corpus hearing, shall be paid from the general fund of the county in which the prosecution was instituted or habeas corpus hearing held, according to the following schedule:

" * * *

"(d) For expenses incurred for purposes of investigation and expert testimony, a reasonable fee to be set by the court but in no event to exceed $500; ..."

On December 2, 1977, appellant requested $500 for investigative fees for expenses apparently not yet incurred. The trial court granted the motion. On February 6, 1978, after jury selection had begun, appellant filed a new motion contending that the defense had incurred or had agreed to incur expenses of more than $500 but did not specify the amount. This motion requested extra funds for

"... various experts in the fields of medicine, psychiatry, and psychology, concerning their conducting examinations and tests on issues of competency, sanity and punishment. Defendant has also contacted an analytical chemist to examine the State's blood and hair exhibits and to conduct independent analyses of the exhibits."

As noted above, psychiatric and psychological tests had been performed on appellant at appellant's request. The expenses for these exams were apparently paid directly by the court and were not charged to appellant's $500. In effect, therefore, appellant had the use of more than $500 in investigative expenses. Appellant, in his February 6, 1978 motion, requested $1000 in additional money. He failed to inform the trial court how the original $500 had been used.

On June 1, 1978, appellant filed a formal bill of exception concerning the denial of the additional funds. This included a sworn statement from one of appellant's attorneys. The statement said that appellant's attorneys had wished to employ a chemist but were unable to do so because they had expended the $500 that had been allocated by the court. It is apparent from the bill that the February 6, 1978 request was for future use and not for expenses already incurred.

Appellant now complains that the denial of the additional funds requested on February 6, 1978 was reversible error. Since the expenses had not yet been incurred, there certainly was no abuse of the trial court's discretion by denying the motion at that time. Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). In Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981), this Court said: "Under Art. 26.05, V.A.C.C.P., counsel is entitled to reimbursement of investigation expenses only after they are incurred and even then reimbursement is discretionary with the Court."

Here, the trial court had approved and allocated $500 for experts and investigation to be used as appellant desired. Appellant made no showing why that $500 granted earlier was not sufficient or that the funds were for different types of experts than those previously used. Surely a defendant cannot expect to obtain expert opinion after expert opinion after expert opinion at public expense in the mere hope of stumbling across an opinion that meets his approval.

While in certain cases there may be a constitutional right for an indigent defendant to have funds for expert investigation or testimony, this right does not give a defendant carte blanche. Here, unlike cases cited by appellant, a substantial sum was allocated and used by the defendant for expert testimony. See United States v. Crim, 527 F.2d 289 (10th Cir. 1975), cert. denied 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). In that case, the Tenth Circuit rejected a defendant's claim that the $300 allocated by the trial court for investigation was inadequate. See...

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