WR-80,559-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/21/2015 12:36:30 PM
Accepted 1/21/2015 4:42:01 PM
ABEL ACOSTA
NO. ___________________ CLERK
RECEIVED
COURT OF CRIMINAL APPEALS
1/21/2015
ABEL ACOSTA, CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
IN RE ALBERT JAMES TURNER
Original Proceeding from the 368th District Court of Fort Bend County, Texas
The Honorable Brady Elliott, Presiding Judge
Trial Court Cause No. 10-DCR-054233
PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION
*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
Pursuant to Tex. R. App. P. 52.3(a), the Relator identifies the following parties and
the names and address of counsel:
1. Relator
Albert James Turner
Represented by:
Robert A. Morrow
State Bar No. 14542600
24 Waterway Ave., Suite 660
Woodlands, Texas 77380
Telephone: 281-379-6901
ramorrow15@gmail.com
Amy Martin
State Bar No. 24041402
202 Travis St., Suite 300
Houston, Texas 77002
Telephone: 713-320-3525
amymartinlaw@gmail.com
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
Telephone: 281-341-8610
Fax: 281-341-8614
3. Real Party in Interest
The State of Texas
Represented by:
John F. Healy, Jr.
Fort Bend County District Attorney
Fred Felcman Assistant Criminal District Attorney
1422 Eugene Heimann Circle
Richmond, Texas 77469
Telephone: 281-341-4460
Fax: 281-341-4440
Fred.Felcman@fortbendcountytx.gov
3
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL _____________________________ 2
TABLE OF AUTHORITIES _________________________________________ 5
I. INTRODUCTION _______________________________________________ 6
II. STATEMENT OF THE CASE _____________________________________ 6
III. STATEMENT OF JURISDICTION _________________________________ 7
IV. ISSUES PRESENTED ___________________________________________ 7
1. THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING A FEASIBILITY
DETERMINATION OF RELATOR’S RETROSPECTIVE COMPETENCY TRIAL WITHOUT
DUE PROCESS ____________________________________________________ 7
2. THE TRIAL COURT ABUSED ITS DISCRETION BY PROCEEDING TO RELATOR’S
RETROSPECTIVE COMPETENCY TRIAL WITHOUT THE FEASIBILITY DETERMINATION
THAT DUE PROCESS REQUIRES _______________________________________ 7
V. STATEMENT OF FACTS ________________________________________ 8
VI. ARGUMENT _________________________________________________ 13
VII. CONCLUSION AND PRAYER __________________________________ 16
CERTIFICATION ________________________________________________ 17
CERTIFICATE OF COMPLIANCE _________________________________ 17
APPENDIX______________________________________________________ 18
CERTIFICATE OF SERVICE _______________________________________ 19
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TABLE OF AUTHORITIES
CASES
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) ....................................8
Buntion v. Harmon, 827 S.W.2d 945 (Tex. Crim. App. 1982) ...............................14
Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979) .........................13
Drope v. Missouri, 420 U.S. 162, 183 (1975) ...........................................................8
Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008) ........................................13
Ex rel. Hilbig v. McDonald, 877 S.W.2d at 470 (Tex. Crim. App. 1982)...............14
Greene v. State, 264 S.W.3d 271 (Tex. App.—San Antonio 2008) ..........................8
Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 648-
49 (Tex. Crim. App. 2005) ...................................................................................15
In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) ................................14
In re Reece, 341 S.W.3d 360, 375 (Tex. 2011) .........................................................7
In re State ex re. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013) ...........13
Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003). .......................7
Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987 .................................15
Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013), reh'g denied
(Apr. 2, 2014)..........................................................................................................6
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) ............................................14
RULES
Tex. R. App. P. 52.3(a) ..............................................................................................2
Texas Rule of Appellate Procedure 9.4(i)(3) .......................................................17
CONSTITUTIONAL PROVISIONS
Tex. Const. Art. V, § 5 ...............................................................................................7
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TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:
Now comes Albert James Turner, Relator, by and through his undersigned
counsel, and files this Petition for Writ of Mandamus and Petition for Writ of
Prohibition, and would respectfully show the Court as follows:
I. INTRODUCTION
Relator requests that this Court enforce its opinion and direct Respondent to
make the determination of feasibility that Due Process requires, prior to conducting
a retrospective competency trial. This Court has consistently held that a
retrospective competency trial is only constitutionally permissible if it is found to be
feasible, and Mr. Turner’s case is no different. Turner v. State, 422 S.W.3d 676,
696-97 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014).
II. STATEMENT OF THE CASE
Underlying proceeding
Mr. Turner was, in violation of his Due Process rights, denied a competency
trial during his capital murder trial in which he was sentenced to death. This Court
instructed the trial court to determine if a retrospective competency trial is feasible.
If it is not, the record of the proceedings on remand are to be sent to this Court to
resume appellate review. Id.
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Respondent and Respondent’s actions
Respondent is The Honorable Brady Elliott presiding over the 268th District
Court in Fort Bend County, Texas. Judge Elliott has denied Mr. Turner Due Process
by neglecting to make a proper feasibility determination prior to the imminent
retrospective competency trial.
III. STATEMENT OF JURISDICTION
This Court has jurisdiction to issue writs of mandamus and writs of
prohibition in criminal matters. See Tex. Const. Art. V, § 5; see also In re Reece,
341 S.W.3d 360, 375 (Tex. 2011). This is a capital murder case in which the death
penalty was assessed and therefore this petition is properly filed in this Court.
Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003).
IV. ISSUES PRESENTED
1. THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING A
FEASIBILITY DETERMINATION OF RELATOR’S RETROSPECTIVE
COMPETENCY TRIAL WITHOUT DUE PROCESS
2. THE TRIAL COURT ABUSED ITS DISCRETION BY PROCEEDING TO
RELATOR’S RETROSPECTIVE COMPETENCY TRIAL WITHOUT THE
FEASIBILITY DETERMINATION THAT DUE PROCESS REQUIRES
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V. STATEMENT OF FACTS
Feasibility first
This Court remanded this case because of a Due Process violation—an
improper denial of a competency trial. The only possible remedy for that error is a
retrospective competency trial. However, before conducting that trial, the trial court
must “first determine whether it is presently feasible to conduct a retrospective
competency trial.” Id. The feasibility determination is critical because of the
inherent difficulties in these types of trials. 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). The proceeding must be ruled feasible for it to go forward to ensure Mr.
Turner’s due process rights are protected. Drope v. Missouri, 420 U.S. 162, 183
(1975).
Counsel’s concerns
At a May 30, 2014 hearing, defense counsel requested a competency exam to
determine Mr. Turner’s current competence 1 . See Exhibit B: May 30, 2014
Reporter’s Record on Determination of Retrospective Competency. The request was
1 The request was based, in part, upon the opinion Greene v. State, 264 S.W.3d 271 (Tex. App.—
San Antonio 2008) in which the Court of Appeals found it unfeasible to have a retrospective
competency trial because Appellant was incompetent and was “expected to remain incompetent
for the indefinite future.” Id. at 272.
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prompted by counsel’s unsuccessful attempts to communicate with Mr. Turner and
particular concern for Mr. Turner’s lack of understanding of the proceedings given
the very unusual legal posture of his case.
His perception of his attorneys and the legal system seems to be the same as
it was at trial, but it’s radicalized. While he knows that this proceeding has
something to do with competency, he believes it is a ruse so the judge and his lawyers
can prevent him from filing motions; his motions have to be secret because if his
lawyers hear about it they’ll shut him down. He frequently refers back to issues at
trial, such as the deposition video that he knows was edited to hide exculpatory
information from the jury. He is angry that his appellate lawyer, who represents him
at this stage, didn’t bring this video issue up and knows that “he’s the one that’s
really trying to kill me2.”
Feasibility in the future
Respondent agreed that Mr. Turner’s current competency was relevant to
going forward. He also explained the standard he would use to determine
competency: “. . . that is a finding that we’ve always followed in the law of
2 Mr. Turner made these statements, and many more, during a jail phone call with his sister on
November 3, 2014. Counsel does not have an official transcript of the call, but has listened to it,
and many others, in its entirety. It is part of the discovery provided by the State.
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competency that if the person won’t cooperate and won’t participate, they are
determined to be competent.” Id. at 8. Respondent ruled:
Because the request is a due process request to assist counsel; and,
therefore it would be the same standard as we use for trial. And I think
that would – In the abundance of caution, I think that would be the best
way to proceed; and we can get this done at the earliest convenience;
and dependent upon their [experts] findings, we’ll hold a hearing very
shortly thereafter to proceed to the feasibility part of this issue.
Id.
Counsel for the state and Relator each chose experts to conduct evaluations3.
3 doctors attempted to interview Mr. Turner and he refused to see each of them4.
Feasibility forgotten
On September 25, 2014, with no other hearing since May 30th, a 1 page Order
was sent to the parties stating:
On this day, the Court considered whether a retrospective competency
trial is feasible. After hearing the arguments of counsel, and
considering the evidence available, the Court finds that a retrospective
competency trial is feasible.
3 The State requested the court appoint Dr. Mitchell Dunn and then requested Dr. Dunn be replaced
with Dr. David Self, who had to withdraw from the case, and ultimately they chose Dr. Mark
Moeller to attempt to interview Mr. Turner. The Defense asked Dr. Mary Alice Conroy to
interview Mr. Turner. Ultimately Dr. Self was able to attempt to see Mr. Turner. Mr. Turner
refused to see Dr. Moeller, Dr. Conroy, and Dr. Self.
10
See Exhibit C Order on Feasibility of Retrospective Competency Trial. Trial was
set for December 1, 2014. The Order had been attached to the April 28, 2014 State’s
Bench Memorandum on the Feasibility of a Retroactive Competency Hearing5. See
Exhibit D. In fact, there was never a discussion or presentation of the “evidence
available” and there were no “arguments of counsel.”
Requesting review of the feasibility
On defense counsel’s request, a pre-trial hearing was held on January 16, 2015
to ask the court to conduct a feasibility determination that meets the requirements of
Due Process. See Exhibit E January 16, 2015 Reporter’s Record Motions Hearing,
Volume I. At that time, defense counsel also presented Defendant’s Motion to
Address Mr. Turner’s Current Incompetency and Brief in Support. Exhibit F.
Incomplete inquiry
Respondent denied Mr. Turner’s request and maintained that he had already
appropriately determined feasibility at the May 30th hearing. Id. at pp.12,15.
However, on May 30th, the only decision that had been made was that Mr. Turner’s
current competency was relevant and that he should be evaluated by mental health
5
The Memorandum included a list of video visits and phone calls from the time of trial that
purportedly showed that there was enough evidence to have a retrospective competency trial.
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professionals 6 . Respondent described what he believed to be the feasibility
determination:
I, in fact, conducted a hearing on May 30th of '14 where I found that it
was feasible to go forward with the competency exam -- or feasible to
go forward with a retrospective competency hearing. I also ordered at
that time another competency exam with Mr. Turner, and he refused to
talk to the doctors that I sent up to talk to him, so the feasibility issue
has already been decided.
Id. at 12. Respondent refers to “all the evidence that is going to be produced
is his competency at the time of the Trial on the Merits.” Id. at 13. The criminal
proceedings against Mr. Turner began 4 years ago. As the prosecutor pointed out,
among other things, Respondent is supposed to evaluate the “passage of time” and
“the quality and quantity of the evidence.” Id. at 10. Additionally, this Court
ordered the Respondent to consider “any other pertinent considerations” when
making the feasibility determination. Turner at 696.
There has never been a review of anything other than Mr. Turner’s refusal to
speak with experts. There has been no discussion regarding the availability of lay
and expert witnesses, the recall of those witnesses, events that have occurred since
the trial, or any other “pertinent considerations.”
6 In its State’s Motion for Enforcement of the Trial Court’s Limited Jurisdiction on Remand, the
State describes the hearing as “a procedural and scheduling hearing.” Exhibit G p.2
12
Respondent only looked at one issue. That limited and superficial evaluation
of the evidence is not what this Court ordered and it is not enough to constitute a
feasibility determination consistent with Due Process such that a retrospective
competency trial can be conducted.
Straight to trial
At present, there has been no testimony, evidence, or arguments regarding
feasibility. Determining the feasibility of a retrospective competency trial is done
on a case-by-case basis; it is fact specific. Caballero v. State, 587 S.W.2d 741, 743
(Tex. Crim. App. 1979). Therefore, a proper determination requires facts. Due
Process demands that Mr. Turner be given the opportunity to provide information to
the trial court and that the information is thoughtfully considered.
VI. ARGUMENT
A. Applicable Mandamus Law
There are two requisites necessary in order to obtain relief on a writ of
mandamus: (1) the act sought to be compelled is ministerial and (2) the party seeking
relief must show that there is no adequate remedy at law7. In re State ex re. Weeks,
391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013).
7 The same requirements apply to writs of prohibition. See Ex parte Alba, 256 S.W.3d 682 (Tex.
Crim. App. 2008).
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“Clear right to the relief sought”
In this context, a ministerial act is one which is “clearly compelled by the legal
authority extant in a given situation.” Ex rel. Hilbig v. McDonald, 877 S.W.2d at
470 (citing Buntion v. Harmon, 827 S.W.2d 945, 947-48 n.2 (Tex. Crim. App.
1982)). As this Court has recognized, the clear right to the relief sought is the
functional equivalent of a ministerial act. Id. (citation omitted).
To show “a clear right to the relief sought,” Mr. Turner must show that the
facts and circumstances of this case “dictate but one rational decision ‘under
unequivocal, well-settled . . . and clearly controlling legal principles.’ ” In re
McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (quoting Weeks, 391 S.W.3d
at 117)8. Exhibit H.
Upon remand, this Court ordered an evaluation of all “pertinent
considerations” to determine if a retrospective competency trial was feasible. Turner
at 696. The Respondent violated that Order and has not provided any forum in which
Mr. Turner can present witnesses, submit evidence, and argue the feasibility issue.
8 In re McCann is another Petition for a Writ of Mandamus arising out of the same this case. Judge
Elliott was also the Respondent in that proceeding which addressed the right of a client (Mr.
Turner) to control his legal file.
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Mandamus/Prohibition is the only adequate remedy
Mandamus is the proper remedy to correct a clear abuse of discretion by a
trial court when the relator has no adequate remedy at law. Walker v. Packer,
827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Because a trial court "has
n o ‘discretion’ in determining what the law is or applying the law to the facts,"
a "clear failure by the trial court to analyze or apply the law correctly will constitute
an abuse of discretion." Id. at 840.
Any conjured “potential review at a later time” is not an adequate remedy
here. Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645,
648-49 (Tex. Crim. App. 2005). “In some cases, a remedy at law may technically
exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow,
inconvenient, inappropriate or ineffective as to be deemed inadequate.” Smith v.
Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987).
This Court has ordered the Respondent to make a feasibility determination
before proceeding with a retrospective competency trial to ensure that Mr. Turner’s
Due Process rights are protected. Turner at 696. Respondent must consider all
“pertinent considerations” when making that determination. Id. Respondent abused
his discretion by failing to follow this Court’s unambiguous mandate.
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The only adequate remedy for Mr. Turner is for this Court to issue the Writs
of Mandamus and Prohibition in order to stay the trial and allow time for a proper
feasibility determination with the necessary Due Process protections.
VII. CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator respectfully requests
that this Honorable Court grant this Petition for a Writ of Prohibition directing the
Respondent to postpone the retrospective competency trial and grant this Petition for
Writ of Mandamus and direct Respondent to conduct a hearing on the feasibility of
a retrospective competency trial.
Respectfully submitted,
Robert A. Morrow
____________________________
ROBERT A. MORROW
State Bar No. 14542600
24 Waterway Ave., Suite 660
The Woodlands, Texas 77380
Telephone: (281) 379-6901
ramorrow15@gmail.com
_____________________________
Amy Martin
AMY MARTIN
State Bar No. 24041402
202 Travis St., Suite 300
Houston, Texas 77002
Telephone: (713)320-3525
amymartinlaw@gmail.com
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CERTIFICATION
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.
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 2,810 words (excluding the caption, identity of parties and
counsel, table of contents, index of authorities, signature block, certification,
certificate of service, certificate of compliance, and appendix). 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
typeface. 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.
Robert A. Morrow
____________________________
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APPENDIX
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above Petition for Writ of
Mandamus and Petition for Writ of Prohibition was faxed and/or delivered
electronically on January 21, 2015 to:
Respondent
The Honorable Brady Elliott
Trial Court Judge
368th Judicial District Court of Fort Bend County
1422 Eugene Heimann Circle
Richmond, Texas 77469
Telephone: 281-341-8610
Fax: 281-341-8614
Real Party in Interest
John F. Healy, Jr.
Fort Bend County District Attorney
Fred Felcman
Assistant Criminal District Attorney
1422 Eugene Heimann Circle
Richmond, Texas 77469
Telephone: 281-341-4460
Fax: 281-341-4440
Fred.Felcman@fortbendcountytx.gov
Robert A. Morrow
____________________________
ROBERT A. MORROW
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