Rey v. State

• Decision Date: 15 March 1995
• Docket Number: No. 71,459,71,459
• Citation: 897 S.W.2d 333
• Parties: Johnny Lee REY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 333

897 S.W.2d 333

63 USLW 2613

Johnny Lee REY, Appellant, v.The STATE of Texas, Appellee.

No. 71,459.

Court of Criminal Appeals of Texas En Banc.

March 15, 1995.

Rehearing Denied May 3, 1995.

C.R. Daffern, Amarillo, for appellant.

Jim Vollers, Sp. Prosecutor, Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MALONEY, Judge.

Appellant was convicted of capital murder committed in the course of burglary.Tex.Penal Code Ann. § 19.03(a)(2).The jury affirmatively answered the two special issues submitted to it and appellant was sentenced to death.Tex.Code Crim.Proc.Ann. art. 37.071 § 2(b), (e).Appeal to this Court is automatic.Tex.Code Crim.Proc.Ann. art. 37.071(h).

In his first point of error appellant claims the trial court erred in denying his motion for the appointment of an independent forensic pathologist to assist him in the preparation and presentation of his defense.We will reverse.¹

I.Preservation of Error

The State contends that no error was preserved for review because appellant failed to obtain a ruling on his motion.

Appellant's motion was presented at the end of the first day of testimony during the guilt phase of trial.After hearing arguments from the parties, the trial court stated that he would not rule on the issue until hearing the direct testimony of the State's pathologist, Dr. Ralph Erdmann.The parties argued further about whether appellant could select his own expert.The trial court stated that it would permit the appointment of the expert selected by appellant if it ruled favorably on appellant's motion, but reiterated that it was reserving the right to rule on the motion later.

The next day Erdmann testified on a bill of exceptions as to his qualifications as an expert.²Immediately thereafter appellant asked the court whether it had made a determination on his motion for the appointment of a pathologist.The court responded that it had extensively researched the issue and would give a ruling after a short recess; however, no further proceedings appear in the record for that day.The next day during Erdmann's direct testimony before the jury, appellant objected to the State's introduction of autopsy photographs.During his objection appellant stated "I would remind the Court that the Court previously denied my request for my own pathologist."No one objected to this statement.Although some of appellant's objections to the photos were unclear, he objected in part because he did not have his own pathologist to assist in cross-examining Erdmann regarding them.³That objection was overruled.

The State does not contend that appellant's objection and motion were not sufficient to apprise the court or the State of his complaint; rather, the State says error was not preserved because the trial court's ruling on the motion does not appear in the record.While we require that a defendant's objections be specific enough to effectively communicate his complaint to the court, we are less stringent in our requirements of the trial court's ruling on an objection.A court's ruling on a complaint or objection can be impliedly rather than expressly made.See, e.g., Chappell v. State, 850 S.W.2d 508, 510(Tex.Crim.App.1993)(defendant's objection to jury shuffle overruled when trial judge granted State's motion to shuffle);Ramirez v. State, 815 S.W.2d 636, 650(Tex.Crim.App.1991)(trial judge "implicitly overruled"defendant's objection to State's question by directing witness to answer question);Beebe v. State, 811 S.W.2d 604, 605(Tex.Crim.App.1991)(where defendant requested additional time and trial court stated he would attempt to dispose of all pending cases if "humanly possible" in the morning, trial court's response was sufficient to preserve error).A trial court's ruling on a matter need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling.Cf.Moody v. State, 827 S.W.2d 875(Tex.Crim.App.1992), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75(1993).In Moody, the defendant complained the trial court abused its discretion by its sua sponte excusal of a veniremember.Although "the statement of facts [did] not include a transcription of the discussions between the trial court and this veniremember nor delineate the precise moment in time when the excusal was made,"we concluded that comments by the trial court and testimony of the deputy clerk indicated the reasons for the excusal and proved that it was made after the panel was sworn but before individual questioning.Id. at 879.

Appellant twice requested the court to make a ruling and then stated for the record that the court had denied his motion.Neither the court nor the State corrected that statement.In addition, appellant renewed his motion in objecting to the introduction of Erdmann's autopsy photographs, and the court expressly overruled that objection.We hold the record sufficiently reflects that the trial court ruled adversely to appellant's motion and thus the issue was preserved for review.

II.The Merits of Appellant's Motion

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53(1985), the defendant requested the appointment of a psychiatrist to assist on the issue of his sanity at the time of the offense.The Supreme Court explained that due process requires access to the raw materials integral to the building of an effective defense.Id. at 77, 105 S.Ct. at 1093.While the State need not "purchase for an indigent defendant all the assistance that his wealthier counterparts might buy," it must provide him the basic tools to present his defense within our adversarial system.Id.The Court set forth the following three factors as relevant considerations in determining "whether, and under what conditions, the participation of a psychiatrist is important enough to preparation of a defense to require the State to provide an indigent defendant with access to competent psychiatric assistance":

The first is the private interest that will be affected by the action of the State.The second is the governmental interest that will be affected if the safeguard is to be provided.The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

Id.

The Supreme Court devoted only a paragraph to each of the first two factors.They stated that an individual's interest in the accuracy of a proceeding where his life or liberty is at stake is "obvious and weighs heavily" in the analysis.Ake, 470 U.S. at 78, 105 S.Ct. at 1093.Given that the State also maintains an interest in the legitimacy of the verdict, the only interest the Supreme Court could identify that weighs against an accused's interest in an accurate outcome is the State's concern for judicial economy.In Ake, the Court concluded that the State's interest in judicial economy was "not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions."Id. at 79, 105 S.Ct. at 1094.

The Court placed the greatest emphasis on the third factor, discussing the importance of psychiatric testimony in conveying to the factfinder an understanding of the defendant's mental state and its potential impact on his behavior at the time in question.The Court concluded that the risk of an inaccurate verdict was high where the defendant was not assisted by a psychiatrist to "help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State's psychiatric witnesses."Id. at 82, 105 S.Ct. at 1096.The Court further stated that where it is clear that the defendant's sanity is likely to be a significant factor, "a defense may be devastated by the absence of a psychiatric examination and testimony; with such assistance, the defendant might have a reasonable chance of success."Therefore, the Court held 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 who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Id. at 83, 105 S.Ct. at 1096.

A. Ake

Applies to Non-psychiatric Experts

Appellant contends that he was entitled under Ake to the assistance of his own pathologist.The State argues that the opinion of a pathologist is not comparable to the opinion of a psychiatrist so as to fall within the parameters of Ake.Appellant argues that the type of expert is immaterial and that the important question is whether the trial was fundamentally unfair without the assistance of the requested expert.

Most courts that have considered the application of Ake have held that where an indigent defendant established a substantial need for an expert, without which the fundamental fairness of his trial will be called into question, Ake requires the appointment of an expert regardless of his field of expertise.⁴As explained by the Eighth Circuit:

There is no principled way to distinguish between psychiatric and nonpsychiatric experts.The question in each case must be not what field of expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.

Little v. Armontrout, 835 F.2d 1240, 1243(8th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894(1988).Ake is not limited to psychiatric experts; but the type of expert requested is relevant to the determination of whether the trial was fundamentally unfair without the expert's assistance.The nature of an expert's field and the importance and complexity of the issue will bear directly upon whether the appointment of an expert will be...