WR-82,875-01,02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/10/2015 7:22:57 PM
August 11, 2015 Accepted 8/11/2015 8:15:26 AM
ABEL ACOSTA
NO. WR-82,875-01 and WR-82,875-02 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
In re STATE OF TEXAS ex rel. JOHN F. HEALEY, JR., District Attorney,
268TH JUDICIAL DISTRICT, Relator
ON PETITIONS FOR WRITS OF MANDAMUS AND PROHIBITION
FROM CAUSE NO. 10-DCR-054233 IN THE 268TH DISTRICT COURT,
FORT BEND COUNTY
Real Party in Interest’s Brief on Designated Issues
*Death Penalty Case*
ROBERT A. MORROW AMY MARTIN
State Bar No. 14542600 State Bar No. 24041402
24 Waterway Ave., Suite 660 202 Travis St., Suite 300
The Woodlands, Texas 77380 Houston, Texas 77002
Telephone: 281-379-6901 Telephone: 713-320-3525
ramorrow15@gmail.com amymartinlaw@gmail.com
Attorneys for Albert James Turner
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
The parties identified by the relator are correct and does not require
supplementation. Texas Rule of Appellate Procedure 52.4(a).
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL _____________________________ 2
INDEX OF AUTHORITIES __________________________________________ 3
DESIGNATED ISSUES _____________________________________________ 4
1. Must a defendant be presently competent in order for a retrospective
competency trial to occur? ________________________________________ 4
2. If so, does the trial court have the authority to require a jury to determine
the issue of present competency? ___________________________________ 4
ARGUMENT _____________________________________________________ 5
A defendant must be presently competent in order for a retrospective
competency trial to occur ________________________________________ 5
The Trial Court has the Authority to Require a Jury to Determine
the Issue of Present Competency _________________________________ 12
CONCLUSION ___________________________________________________ 14
CERTIFICATE OF COMPETENT EVIDENCE _________________________ 16
CERTIFICATE OF COMPLIANCE___________________________________ 16
CERTIFICATE OF SERVICE _______________________________________ 17
2
INDEX OF AUTHORITIES
CASES
Barber v. State, 737 S.W.2d 824, 828 (Tex. Crim. App. 1987) ...........................8,13
Brandon v. State, 599 S.W.2d 567, 573 (Tex. Crim. App. 1979) cert. granted,
judgment vacated on other grounds, 453 U.S. 902 (1981) ....................................5
Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979) ...........................8
Drope v. Missouri, 420 U.S. 162, 183 (1975). ..........................................................6
Ex parte Lawton, No. WR-65,068-01, 2006 WL 3692632, at *1 (Tex. Crim. App.
Dec. 13, 2006) ......................................................................................................11
Greene v. State, 264 S.W.3d 271, 273 (Tex. App.—San Antonio 2008) .......... 10,13
In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015) ...............................................13
Jackson v. State, 548 S.W.2d 685, 690 (Tex. Crim. App. 1977).............................10
Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) ......................................6, 11
Medina v. California, 505 U.S. 437, 450-51 (1992)..................................................9
Pate v. Robinson, 383 U.S. 375, 387 (1966) ........................................................9,11
State v. Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App. 2012) abrogated by
Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014). ..............................12
Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013) ...........................5
STATUTES
Texas Code of Criminal Procedure Article 46B.051 .................................................6
Texas Code of Criminal Procedure Article 37.071 .................................................14
RULES
Texas Rule of Appellate Procedure 52.4(a) ...............................................................2
Texas Rule of Appellate Procedure 9.4(i)(3) .......................................................16
3
NO. WR-82,875-01 AND WR-82,875-02
IN THE TEXAS COURT OF CRIMINAL APPEALS
In re STATE OF TEXAS ex rel. JOHN F. HEALEY, JR., District Attorney,
268TH JUDICIAL DISTRICT, Relator
REAL PARTY IN INTEREST’S BRIEF ON DESIGNATED ISSUES
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:
Now comes Albert James Turner, the real party in interest, by and through his
undersigned counsel, and files this Brief on Designated Issues.
DESIGNATED ISSUES
This Court has ordered that relator and Mr. Turner, and invited the trial court
to, brief the following issues:
1. Must a defendant be presently competent in order for a retrospective
competency trial to occur?
2. If so, does the trial court have the authority to require a jury to
determine the issue of present competency?
4
ARGUMENT
This Court made it clear that the trial court’s feasibility determination was not to
be limited to the listed factors, but to take into account all related information:
On remand, the trial court shall first determine whether it is
presently feasible to conduct a retrospective competency trial,
given the passage of time, availability of evidence, and any
other pertinent considerations.
Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013)(footnotes
omitted).
A DEFENDANT MUST BE PRESENTLY COMPETENT IN ORDER FOR A
RETROSPECTIVE COMPETENCY TRIAL TO OCCUR
A poor substitute
When an error is made at trial and a defendant is denied his constitutional right
to a competency trial before his conviction and sentence, the proposed solution is a
retrospective competency trial, but only if it is feasible. Courts, including this one,
have consistently acknowledged “the difficulties inherent in making a retrospective
determination of a defendant's competency. The United States Supreme Court has
stressed these difficulties in its decisions.” Brandon v. State, 599 S.W.2d 567, 573
(Tex. Crim. App. 1979) cert. granted, judgment vacated on other grounds, 453 U.S.
902 (1981).
5
Just as this Court made clear in its directive on remand, the Fifth Circuit has
held: “In answering the threshold question whether a meaningful retrospective
hearing on competency can be held, the lower court must take the initiative to insure
that all relevant evidence comes before it.” Martin v. Estelle, 583 F.2d 1373, 1374
(5th Cir. 1978).
Distinct remedy
Relator argues that this Court’s acknowledgment of the necessity of present
competency for a retrospective trial would somehow affect the requirements of a
traditional competency trial1. A retrospective competency trial is an attempt to fix a
mistake, not a pre-trial procedural safeguard.
The issue before this Court now, in this mandamus proceeding, has nothing to
do with traditional competency trials, and any ruling here will not necessarily have
any impact on them. Unlike the clearly defined procedures for a traditional
competency trial, the process of a retrospective competency trial is judicially
created, amorphous, and riddled with problems implicating due process. Drope v.
Missouri, 420 U.S. 162, 183 (1975).
As convenient as it would be to have a method that could take us back to the
place and time at which the competency trial should have occurred, it’s simply not
1
The term “traditional competency trial” is used to indicate a competency trial described by Article
46B.051 of the Texas Code of Criminal Procedure.
6
possible. A retrospective competency trial is not just a historical review; it is an
attempt to use information, that may or may not still be available, to determine a
defendant’s state of mind at very particular points in time and how that state of
mind affected very particular things— the judicial proceedings and the attorney-
client relationship. A defendant must be competent for the duration of the
proceedings. Therefore, the jury is not just evaluating competency during the trial
generally, but deciding whether or not, at any given point in time, a defendant was
incompetent. Competency can change.
Time does not stand still. In Mr. Turner’s case, it has been more than 4 years
since his trial and Mr. Turner’s experiences, which have undoubtedly changed his
state of mind, have included being housed on death row, spending time in a TDCJ
psychiatric unit, and being medicated.
Retrospective competency trials are presumed unconstitutional
Courts have repeatedly warned of the pitfalls of retrospective competency
trials and stressed the importance of proper feasibility determinations.
It is evident why courts stress the fact that this peculiar procedure which
attempts to re-create the past, violates an individual’s due process rights unless
necessary measures are taken. Drope at 183. There are “inherent difficulties” even
“under the most favorable circumstances.” Id.
7
Whether or not a retrospective trial can be held within the limits of due process
depends “upon the quality and quantity of the evidence available.” Barber v. State,
737 S.W.2d 824, 828 (Tex. Crim. App. 1987).
Examining the quantity and quality of the evidence is done on a case-by-case
basis. Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979). A
retrospective determination of competency may satisfy due process requirements,
depending on the particular facts of a case. Id.
That was then
At the time of trial, when a traditional competency trial is requested, counsel
is seeing and interacting with their client regularly. (In Mr. Turner’s case the
interaction was daily). A defendant is also interacting with court and jail personnel.
Counsel has records of, and the ability to quickly contact, every person—defense
team, jail personnel, prosecutors, and visitors that come into contact or speak with
the defendant contemporaneously. Counsel knows exactly what the defendant’s
daily housing and health conditions are. And they are able to observe the client’s
reaction to the proceedings—the proceedings for which he is required to be
competent.
Even though a defendant is incompetent during a traditional competency trial,
his attorney is able to conduct extemporaneous evidence collection and evaluation.
8
In a traditional competency trial, the incompetent “defendant might be limited
in his ability to assist counsel in demonstrating incompetence, the defendant's
inability to assist counsel can, in and of itself, constitute probative evidence of
incompetence, and defense counsel will often have the best-informed view of the
defendant's ability to participate in his defense.” Medina v. California, 505 U.S.
437, 450-51 (1992).
This is now
In a retrospective competency trial, an incompetent defendant is probative of
nothing and is an obstacle to obtaining and presenting evidence. An incompetent
defendant makes a retrospective competency trial unfeasible and therefore
unconstitutional. Factors frequently cited to illustrate the danger of retrospective
competency trials are the passage of time and a jury’s inability to observe the
defendant. Pate v. Robinson, 383 U.S. 375, 387 (1966).
The passage of time erodes evidence from all sources—documents, counsel,
expert witnesses, lay witnesses and the defendant himself.
In Mr. Turner’s case, the defendant is currently incompetent. And now,
counsel does not have daily interaction with him or daily interaction with the
personnel that spend time with him. They have not been able to observe him in the
courtroom, his paranoia seems to have deepened, and he is even less communicative.
He is a primary source of evidence and necessary to meaningfully question
9
witnesses. He is potentially also the source of valuable information that could help
re-create and understand his condition at the time of trial. All of that evidence is
inaccessible and unavailable because of his current incompetency.
Due process
When a defendant is erroneously denied a traditional competency trial, he is
placed in a unique and dramatically more complex situation with a considerable
likelihood that he could, yet again, be denied due process. This complexity requires
his participation, at least to some degree. In Greene the San Antonio Court of
Appeals examined the permissibility of having a retrospective competency trial with
a currently incompetent defendant:
Clearly, Greene's ability to assist his trial attorney will be
critical to the outcome of issues to be addressed at the
retrospective competency determination and he should not be
deprived of his right to assist counsel.
Greene v. State, 264 S.W.3d 271, 273 (Tex. App.—San Antonio 2008)2.
A defendant has constitutional protections during a traditional competency
trial. It is “quasi-criminal” and this Court has found it to be “ancillary to the main
criminal proceeding.” Jackson v. State, 548 S.W.2d 685, 690 (Tex. Crim. App.
1977).
2
In Greene, there was a finding that he was unlikely to regain competency in the foreseeable future
and the retrospective competency trial was not held.
10
A defendant is entitled to relief when he is “denied effective assistance of
counsel at their [his] competency hearing, where the competency hearing was
improper for some reason, or where a trial court erroneously failed to hold a
competency hearing.3” Ex parte Lawton, No. WR-65,068-01, 2006 WL 3692632, at
*1 (Tex. Crim. App. Dec. 13, 2006).
A traditional competency trial is subject to due process requirements, and if a
retrospective competency trial is meant to replace that trial that a defendant was
wrongfully denied, the requirements are the same. Because of the radically different
circumstances, numerous difficulties, and high risk of constitutional violations in a
retrospective trial, due process requires that a defendant be currently competent for
a retrospective competency trial to occur.
If the retrospective competency trial is flawed in such a way that Mr. Turner’s
rights were not protected, this case will again be remanded and we will find ourselves
in this same procedural posture with the same incompetent Mr. Turner. Martin v.
Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978).
Given the likelihood that exists for a retrospective competency trial to violate
a defendant’s constitutional rights, he must be competent to participate in the
proceeding for it to occur.
3
Cases often use the word “hearing” instead of “trial.” However, the references are to the same
type of competency trials at issue here.
11
THE TRIAL COURT HAS THE AUTHORITY TO REQUIRE A JURY TO
DETERMINE THE ISSUE OF PRESENT COMPETENCY
Texas Constitution Article V, § 8 describes a District Court’s jurisdiction:
District Court jurisdiction consists of exclusive, appellate, and original
jurisdiction of all actions, proceedings, and remedies, except in cases
where exclusive, appellate, or original jurisdiction may be conferred by
this Constitution or other law on some other court, tribunal, or
administrative body. District Court judges shall have the power to issue
writs necessary to enforce their jurisdiction.
There is no other statute or constitutional provision that grants exclusive
jurisdiction of retrospective competency trials to any other tribunal.
Authority to act
When this Court remands a case to a trial court for a feasibility determination,
it is giving the court the jurisdiction to follow those instructions. State v. Holloway,
360 S.W.3d 480, 485 (Tex. Crim. App. 2012) abrogated by Whitfield v. State, 430
S.W.3d 405 (Tex. Crim. App. 2014).
The judge is also given the authority to require a jury to determine the issue
of present competency4. A retrospective competency trial is not statutorily defined.
It is a judicially created attempt to remedy the denial of a traditional competency
trial.
4
“‘Authority’, on the other hand, may be used to refer to the power of an individual—the judge
who presides over the court—to act under that grant of jurisdiction.” Id.
12
When this Court dictates obligations for the trial court—not restrictions,
nothing prohibits empaneling a jury. The trial court was ordered to determine
“present” feasibility and consider “the passage of time, availability of evidence, and
any other pertinent considerations.5”
In this case, respondent has not ruled that a jury’s verdict regarding current
competency would determine feasibility. The verdict would be one among several
considerations.
In In re Allen, this Court held that the Court of Appeals wrongly decided that
a trial judge acted outside his authority when he granted motions for a pre-trial Atkins
hearing. In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015).6 This Court held: “The
statute currently provides no statutory, procedural scheme defining how intellectual-
disability issues should be handled.” Id. at 50. That is also true regarding
retrospective competency trials. In fact, there is no statute creating the proceeding
at all. Just as the trial court in Allen was permitted to conduct a pre-trial Atkins
hearing, respondent has the authority to require a jury to determine present
competency.
5
These elements are representative on the type that trial courts are ordered to consider. Barber at
828; Greene at 273.
6
This case was decided after relator’s and Mr. Turner’s pleadings were filed in this case and
supports the denial of Mr. Turner’s opposition to prohibiting a current competency trial.
13
There is nothing in Texas law that prohibits a judge from using a jury’s verdict
to assist in decision making. In the death penalty sentencing scheme, a judge is
required to render a sentenced based upon a jury’s answer to special issues. Texas
Code of Criminal Procedure Article 37.071.
Relator points out that respondent does not believe Mr. Turner is incompetent
and that opinion is “plainly spread in the record.” See Relator’s Petition, p. 18. It
is to respondent’s credit that he seeks a jury’s perspective.
CONCLUSION
A defendant must be competent to receive a retrospective competency trial
that does not violate his constitutional rights. The trial court judge to whom the case
has been remanded has the authority to permit a jury to make the determination of
the defendant’s current competency.
14
WHEREFORE, PREMISES CONSIDERED, the real party in interest
respectfully requests that the case be remanded to the trial court to proceed with a
current competency trial.
Respectfully submitted,
/s/ Robert A. Morrow
____________________________
ROBERT A. MORROW
State Bar No. 14542600
o
24 Waterway Ave., Suite 660
The Woodlands, Texas 77380
Telephone: (281) 379-6901
ramorrow15@gmail.com
/s/ Amy Martin
_____________________________
AMY MARTIN
State Bar No. 24041402
202 Travis St., Suite 300
Houston, Texas 77002
Telephone: (713)320-3525
amymartinlaw@gmail.com
15
CERTIFICATE OF COMPETENT EVIDENCE
I certify that I have reviewed the petition and concluded that every factual
statement in the petition is supported by competent evidence included in the
appendix or record.
/s/ Robert
_____ A. Morrow
__ ___________________
ROBERT A. MORROW
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this
petition contains 2,942 words i n i t s e n t i r e t y . This is a computer-generated
document created in Microsoft Word using a conventional l4-point typeface for
all text, e x c e p t f o r f o o t n o t e s , which a r e i n 1 2 -point t y p e f a c e . In
m a k i n g t h i s certificate of compliance, I am relying on the word count of the
computer program used to prepare this document.
/s/ Robert A. Morrow
____________________________
Robert A. Morrow
16
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above Real Party in Interest’s
Brief on Designated Issues was delivered electronically on August 10, 2015 to:
1. Relator
The State of Texas
Represented by:
John F. Healy, Jr., Fort Bend County District Attorney
Fred Felcman, Assistant District Attorney
Fred.Felcman@fortbendcountytx.gov
State Bar No. 06881500
Gail Kikawa McConnell, Assistant District Attorney
Gail.McConnell@fortbendcountytx.gov
State Bar No. 11395400
301 Jackson St.
Richmond, Texas 77469
Telephone: 281-341-4460
Fax: 281-341-4440
2. Respondent
The Honorable Brady Elliott
Trial Court Judge
368th Judicial District Court of Fort Bend County, Texas
1422 Eugene Heimann Circle
Richmond, Texas 77469
/s/ Robert
_____ _ _A.____
Morrow__________
ROBERT A. MORROW
17
in Re the State of Texas Ex Rel. John F. Healey, Jr., District Attorney, 268th Judicial District v. Honorable Brady G. Elliott, Judge 268th District Court, Real Party in Interest Albert James Turner
Combined Opinion