CAUSE NO. ______
THE STATEOFTEXAS§IN THE DISTRICTCOURT
§
vs.§_____ JUDICIAL DISTRICT
§
______§______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 APPOINTEXPERT
PURSUANT TO EX PARTE BRIGGS
Defendant ______moves this moves the court to appoint an expert to assist his/her counsel in this case and for cause would show the court as follows:
1.Defendant is currently charged with ______, a ______degree felony. If convicted, defendant faces a punishment range of ______[if applicable: once the alleged enhancement paragraphs are proved true].
2.Defendant, through Counsel needs to retain the services of ______, an [either profession title or expert in ______] 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.
3.Undersigned Counsel was retained in this caseand Defendant is now indigent. Attached as exhibit A is an affidavit of indigency. Attached as Exhibit B is affidavit of Defendant explaining why he is now currently indigent.
4.Defendant currently works as a [occupation] at [company]. As shown by Exhibit A, Defendant has a grossincome of ______per monthand expenses of at least______.
5.TheCourtofCriminalAppealshasheldthatjustbecauseadefendantisrepresentedbyretainedcounsel does not mean that he cannot at some point qualify as indigent. See Abdnor v. State, 712 S.W.2d 136,142(Tex.Crim.App.1986)(“‘Outsidesourcessuchasrelativesandevenemployersarenot tobeconsideredunlesstheyarelegallyboundtopayfordefendant'sappellateexpenses.’"(citationomitted) (emphasisadded)).
6.In addition,theCourtofCriminalAppealshasfoundretainedattorneysineffective whentheyhavefailedtoseekfundingfornecessaryexpertsincaseswheredefendantsareindigent but where the attorneys are retained. Ex Parte Briggs, 187 S.W.3d 458, 463 (Tex. Crim. App. 2005).
7.The Court of Criminal Appeals has, held that a trial court can commit structuralerrorwhenitfailstoprovidefundsforanecessaryexpertinthecaseofanindigentdefendant. 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.
8.Defense Counsel believes the appointment of this expert is necessary in order to provide defendant with effective assistance of Counsel. [State the specific reasons the expert is needed for Defendant’s case]
9.This ex parte request is being made pursuant to Williams v. State, 958 S.W2d 186, 191 (Crim. App. 1997, reh'g denied).
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,
______
Scott Pawgan
122 W. Davis St., Suite 116
Conroe, TX 77301
936-242-6975 Phone
800-619-5113 Fax
State Bar No. 24002739
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).
______
Scott Pawgan
CAUSE #: ______
STATE OF TEXAS § IN THE ______DISTRICT COURT
§
VS. § OF
§
______§ ______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:
- ______[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