IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 26824CR/A IN THE 40TH JUDICIAL DISTRICT COURT
ELLIS COUNTY
O R D E R
This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.
On February 26, 2004, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Sprouse v. State, No. AP-74,933 (Tex. Crim. App. Jan. 31, 2007)(not designated for publication).
Applicant presents twelve allegations in his application in which he challenges the validity of his conviction and resulting sentence. Although an evidentiary hearing was not held, the trial judge entered findings of fact and conclusions of law. The trial court recommended that relief be denied.
In his second allegation, applicant asserts that his "trial counsel was ineffective for failing to zealously and repeatedly request sufficient funds for adequate expert assistance." In an affidavit provided for the purpose of habeas, counsel stated that they did not pursue additional funding because their previous request had been denied. Presuming that no further request would be granted, "counsel did the best we could with the funding we were given." Applicant contends that such a presumption on counsels' part amounts to deficient conduct and implies that applicant may not have received the tools or representation necessary to present his defense. See generally, Ake v. Oklahoma, 470 U.S. 68 (1985), and Wiggins v. Smith, 539 U.S. 510 (2003).
On habeas, applicant attempts to prove that this conduct was prejudicial by asking the court to hire or approve funds to hire an expert who would provide psychiatric assistance and could evaluate what additional assistance could have been provided had counsel pursued additional funding. The trial court denied the funding because (1) trial counsel did not request a consulting expert at trial, (2) applicant was given an expert at trial and no request was made to fund that expert further, and (3) the court was not advised at trial that applicant's expert was not available for as much consultation as applicant thought necessary.
In his tenth allegation, applicant claims that his trial counsel was ineffective for failing to adequately develop and present mitigating evidence in violation of his Sixth Amendment right to counsel. See generally, Wiggins v. Smith, 539 U.S. 510 (2003). In an effort to show that trial counsel relied solely on his insanity defense for mitigation and, therefore, failed to adequately investigate and develop any other mitigating evidence, applicant requested the habeas court provide a mitigation specialist and an addiction specialist. The court denied both requests. With regard to the motion for a mitigation specialist, the court found (1) that the request was excessive, (2) that the information sought was readily available from the trial attorneys and experts hired at trial, and (3) was duplicitous of information previously obtained. With regard to the motion for an addiction specialist (a medical doctor), the court found (1) that the effects of drug addiction are common knowledge, and (2) there was no reasonable expectation that drug addiction would be taken as a mitigating factor.
Article 11.071 §§ 3(c) and 3(d) provide that a trial court shall grant prepayment or reimbursement requests for investigative and expert expenses that are "timely and reasonable" or "reasonably necessary and reasonably incurred." Because the investigation of claims on habeas will likely involve matters outside of the trial record, especially when an allegation implies an inadequacy at trial, requests for expenses should be evaluated based upon what an applicant reasonably believes he can discover with that assistance, not on what occurred at trial. The reasons given by the habeas judge in each instance are based solely upon the existing trial record and do not consider the nature and purpose of habeas investigations and expert assistance. Thus, those rulings amount to an abuse of discretion and violate the intent of Article 11.071.
Allegations two and ten are remanded to the trial court for that court to reconsider applicant's requests for assistance in a manner consistent with this order. The court has thirty days from the date this order is issued to comply with this order, and it shall notify this Court of its decision(s) in writing within fifteen days of making its determination. Upon reevaluation, should the court determine that any of the requests for assistance be granted, applicant will have 120 days to supplement his application. The State will then have 120 days after applicant files his supplement with the trial court to file a supplemental answer. The court will make additional findings and conclusions within thirty days of the filing of the State's supplemental answer and will order the clerk to forward the entire supplemental record to this Court within fifteen days of the date the court make its additional findings.
IT IS SO ORDERED THIS THE 27TH DAY OF JUNE, 2007.
Do Not Publish