WR-82,875-01,02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/13/2015 1:36:43 PM
Accepted 2/13/2015 3:44:14 PM
ABEL ACOSTA
NO. __________________ CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS RECEIVED
COURT OF CRIMINAL APPEALS
2/13/2015
RELATING TO CAUSE N0. 10-DCR-054233 ABEL ACOSTA, CLERK
268TH DISTRICT COURT, FORT BEND COUNTY, TEXAS
IN RE THE STATE OF TEXAS EX REL. JOHN F. HEALEY, JR.
DISTRICT ATTORNEY, 268TH JUDICIAL DISTRICT
VS.
HONORABLE BRADY G. ELLIOTT, JUDGE PRESIDING
268TH DISTRICT COURT, FORT BEND, COUNTY
STATE’S MOTION FOR LEAVE TO FILE PETITION FOR
WRITS OF MANDAMUS AND/OR PROHIBITION,
AND IF GRANTED, MOTION FOR STAY OF PROCEEDINGS
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
COMES NOW THE STATE OF TEXAS, and in accordance with Rules 10.1(a)
and 72.1 of the Texas Rules of Appellate Procedures, files this motion for leave to file
an original petition for writs of mandamus and/or prohibition. In support thereof
shows:
1. This is a death penalty case.
2. On direct appeal, this Court abated the appeal and remanded the case to
Respondent, Honorable Brady G. Elliott, Judge Presiding, 268th District Court,
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Fort Bend County, Texas, to determine whether a retrospective competency
trial is feasible, and if so, to hold the trial. Turner v. State, 422 S.W.3d 676,
696-97 (Tex. Crim. App. Oct. 30, 2013).
3. This Court’s mandate remands Turner’s case to Respondent to determine
whether a retrospective competency trial is feasible, not to a jury.
4. This Court’s mandate does not order Respondent to determine Turner’s present
competency before finding that a retrospective competency trial is feasible.
5. On February 3, 2015, Respondent ordered a jury trial on the present
competency of Real Party in Interest, Albert James Turner. Contrary to the
mandate of this Court, the verdict of the jury will determine whether a
retrospective competency trial is feasible.
6. Alternatively, Respondent has no jurisdiction or authority to order a jury trial
on the present competency of Turner and Relator has no legal remedy at law.
7. Relator seeks a writ of mandamus and/or prohibition to order Respondent, in
accordance with law and the mandate of this Court, to determine feasibility
without consideration for whether Turner is presently competent.
8. As shown in the petition and exhibits thereto, Respondent has ordered
psychiatric experts to evaluate Turner for present competency.
9. If this motion for leave to file is granted, Relator further requests this Court to
stay the proceedings.
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WHEREFORE, PREMISES CONSIDERED, the Relator respectfully requests
that this Honorable Court grant leave to file its petition for writ of mandamus and/or
a writ of prohibition directing Respondent to withdraw its order for a jury trial on
Turner’s present competency, to determine the feasibility of a retrospective
competency trial on factors other than Turner’s present competency, and if feasible,
to hold the retrospective competency trial. Relator further requests that if leave to file
is granted, that this Court stay the proceedings in the trial court.
Respectfully submitted,
/s/ John F. Healey, Jr.
John F. Healey, Jr.
SBOT # 09328300
District Attorney, 268th Judicial District
Fort Bend County, Texas
/s/ Fred M. Felcman
Fred M. Felcman
SBOT # 06881500
First Assistant District Attorney
/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
SBOT # 11395400
Assistant District Attorney
301 Jackson Street, Room 101
Richmond, Texas 77469
(281) 341-4460 /(281) 238-3340 (fax)
Gail.McConnell@fortbendcountytx.gov
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the State's motion for leave to file petition for
writs of mandamus and prohibition was served by electronic mail on February 13,
2015, on:
Hon. Brady G. Elliott, Respondent,
Robert Morrow, , Attorney for Real Party in Interest
Lisa McMinn, State Prosecuting Attorney,
/s/ Gail Kikawa McConnell
Gail Kikawa McConnell
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