holding that, “if an indigent defendant is not entitled to an ex parte hearing on his Ake motion, he is forced to choose between either foregoing the appointment of an expert disclosing to the State in some detail his defensive theories about weaknesses in the State’s case” and that this result “is contrary to Ake’s concern that an indigent defendant who is entitled to expert assistance have ‘meaningful access to justice,’ and undermines the work product doctrine”
How later courts described this case
- holding that, “if an indigent defendant is not entitled to an ex parte hearing on his Ake motion, he is forced to choose between either foregoing the appointment of an expert disclosing to the State in some detail his defensive theories about weaknesses in the State’s case” and that this result “is contrary to Ake’s concern that an indigent defendant who is entitled to expert assistance have ‘meaningful access to justice,’ and undermines the work product doctrine”
- finding that the trial court’s erroneous failure to allow an indigent defendant to move ex parte for psychiatric assistance was not harmless beyond a reasonable doubt and vacating the defendant’s death sentence because, even though information about the expert was discoverable once the expert was called to testify, the earlier disclosure helped the prosecution to better prepare for cross-examination
- holding that the trial court's erroneous denial of the defendant's request to move for expert psychiatric assistance ex parte was harmless beyond a reasonable doubt as to the guilt/innocence phase, where no legal defense based upon defendant's mental condition was raised and no mental health testimony was presented during that phase of trial
- stating that under the corpus delecti rule, an extrajudicial confession, standing alone, is not enough to support a conviction; other evidence must exist showing that a crime has in fact been committed
Written by the judges who cited it.
The opinion
MANSFIELD, Judge,
dissenting.
I respectfully dissent. Although I agree with the majority that the trial court erred in not allowing appellant to make his threshold Ake showing ex parte, I am persuaded that, given the particular facts of this case, that error was harmless beyond a reasonable doubt as to appellant’s conviction and punishment. See Tex.R.App. Proe. 44.2(a).
In Ake v. Oklahoma, 470 U.S. 68, 83 , 105 S.Ct. 1087, 1096 , 84 L.Ed.2d 53 (1985), the Supreme Court of the United States held that the Due Process Clause of the Fourteenth Amendment entitles an indigent defendant to the appointment of a psychiatrist, at State expense, to assist the defendant in his defense when the defendant makes a threshold showing that the issue on which the psychiatric assistance is sought is going to be a significant factor at trial. The Ake Court explained, in relevant part:
This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on *197 the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
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... We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.
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... When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.
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We therefore hold 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.
Ake v. Oklahoma, 470 U.S. at 76, 77 , & 82-88, 105 S.Ct. at 1092, 1093 , & 1096 (emphasis added). 1
If the Supreme Court’s explicit language was not enough to make clear that due process entitles a defendant to make his threshold Ake showing ex parte, several other high courts have specifically so held, and with good reason. See, e.g., Ex parte Moody, 684 So.2d 114, 120 (Ala.1996); Brooks v. State, 259 Ga. 562 , 385 S.E.2d 81, 84 (1989); McGregor v. State, 733 P.2d 416 (Okla.Crim.App.1987); State v. Barnett, 909 S.W.2d 423, 428-429 (Tenn.1995). That fundamental fairness, as guaranteed by the Due Process Clause, requires an ex parte hearing is apparent. “Indigent defendants who must seek state funding to hire a psychiatric expert should not be required to reveal their theory of defense when their more affluent counterparts, with funds to hire experts, are not required to reveal their theory of defense, or the identity of experts who are consulted, but who may not, or do not, testify at trial.” State v. Barnett, 909 S.W.2d at 428 . “If ex parte hearings are not required, indigent defendants would, in effect, be penalized for requesting psychiatric expert assistance by being required to disclose [sensitive] information, and may be deterred from seeking it because of the breadth of disclosure required.” Id. at 429 . Non-indigent defendants, on the other hand, would not face this dilemma.
Having said all that, I still believe that, under the particular facts of this case, the trial court’s error in not affording appellant an ex parte hearing was harmless beyond a reasonable doubt as to appellant’s conviction and punishment. The majority concedes the error was harmless with respect to appellant’s conviction. With respect to appellant’s punishment, the majority argues only that the error was not harmless because it resulted in the State having “premature” access to the defense psychotherapist’s initial affidavit, which contained (1) her qualifications, (2) her conclusions regarding certain mental disorders from which appellant might be suffering, (3) an admission that her conclusions were preliminary, and (4) a statement that a complete evaluation of appellant would require further examination. The majority concedes that, at the time the defense psychotherapist took the stand at the punishment stage, the State was entitled to the affidavit anyway under Texas Rule of Criminal Evidence 705(b), but the majority nevertheless insists that appellant was harmed because the State’s “premature” access to the affidavit rendered the State “more prepared” to crossexamine the psychotherapist than it otherwise would have been.
*198 I disagree. I believe this ease presents a classic case of harmless error. The only real effect of the error here was to give the State early access to an affidavit of the defense’s expert, but the State was ultimately entitled to the affidavit anyway under Rule 705(b).
I would affirm the judgment of the trial court.
. We later held that Ake applies to non-psychiatric experts, as well. Rey v. State, 897 S.W.2d 333, 337 (Tex.Crim.App.1995).