Chisum, Justin

WR-83,141-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/16/2015 11:10:22 AM Accepted 4/16/2015 11:25:44 AM ABEL ACOSTA No. ____________ CLERK In The RECEIVED COURT OF CRIMINAL APPEALS 4/16/2015 Court of Criminal Appeals ABEL ACOSTA, CLERK Austin, Texas In re Justin Chisum Relator On Appeal from Cause No. 2015-820,779 In the 134th Judicial District Court of Lubbock County, Texas The Honorable William R. Eichman, II, Presiding EMERGENCY PETITION FOR WRIT OF MANDAMUS Allison Clayton State Bar No. 24059587 The Law Office of Allison Clayton P.O. Box 64752 Lubbock, Texas 79464 (806) 773 – 6889 Fax (888) 688 – 4515 Allison@AllisonClaytonLaw.com Attorney for Appellant ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL Pursuant to TEX. R. APP. P. 38.1(a), the following is a complete list of the names of the parties and their counsel. PARTIES COUNSEL Trial and Appellate Counsel Nicky Boatwright, P.C. 1005 Broadway Lubbock, Texas 79401 Justin Chisum Defendant / Relator Ted Hogan The Law Office of Ted Hogan, P.C. 1112 Texas Avenue Lubbock, Texas 79401 Allison Clayton The Law Office of B. Allison Clayton P.O. Box 64752 Lubbock, Texas 79464-4752 Trial Counsel Sushine Stanek Assistant District Attorneys The State of Texas P.O. Box 10536 Lubbock, Texas 79408-3536 The Honorable William Eichman, II Respondent Appellate Counsel Jeffrey S. Ford Assistant District Attorney P.O. Box 10536 Lubbock, Texas 79408-3536 -i- TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL .............................................................. i TABLE OF CONTENTS .............................................................................................ii INDEX OF AUTHORITIES........................................................................................iii STATEMENT OF THE CASE ....................................................................................v STATEMENT OF JURISDICTION............................................................................vi ISSUE PRESENTED ...................................................................................................vi STATEMENT OF FACTS ..........................................................................................2 SUMMARY OF THE ARGUMENT .......................................................................... 3 ARGUMENT ...............................................................................................................4 I. THE TRIAL COURT FAILED TO PERFORM A MINISTERIAL ACT BY DENYING MR. CHISUM’S MOTION TO STAY .................................................. 4 A. No Adequate Remedy Exists to Redress Mr. Chisum’s Harm .......... 4 B. The Trial Court had a Ministerial Duty to Stay the Proceedings...... 5 1. The Texas Legislature Steadfastly Protects Potentially Incompetent Defendant’s ................................................................... 6 2. The Plain Language of Article 46B.004(d) Includes Grand Jury Proceedings ....................................................... 8 3. The Trial Court Failed to Follow Statutory Dictate ........................... 14 II. A STAY IS REQUIRED TO PROTECT MR. CHISUM’S CONSTITUTIONAL RIGHTS ....................................................................................15 PRAYER ......................................................................................................................17 CERTIFICATES ..........................................................................................................18 APPENDICES - ii - INDEX OF AUTHORITIES Federal Cases Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956) ..........................................6, 10 Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975) .................................. 6, 7, 16 Johnson v. Southern Pac. Co., 196 U.S. 1, 25 S.Ct. 158 , 49 L.Ed. 363 (1904) .....................................................9 Medina v. California, 505 U.S. 437, 112 S.Ct. 2572 , 120 L.Ed.2d 353 (1992) .......................................6 Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ................................... 6, 7, 13 Riggins v. Nevada, 504 U.S. 127, 139, 112 S.Ct. 1810, 1817, 118 L.Ed.2d 479 (1992) ....................15 Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S.Ct. 2578 , 171 L.Ed.2d 366 (2008) ........................ 13, 15, 17 United States v. Cook, 384 U.S. 257, 86 S.Ct. 1412 , 16 L.Ed.2d 516 (1966) .........................................10 United States v. Lacher, 134 U.S. 624, 10 S.Ct. 625 , 33 L.Ed. 1080 (1890) ...............................................9 United States v. Winn, 3 Sumn. 209, Fed. Cas No. 16,740 .........................................................................9 State Cases Alcott v. State, 51 S.W.3d 596 (Tex. Crim. App. 2001) .................................................................7 Carlile v. State, 451 S.W.2d 511, 512 (Tex. Crim. App. 1970) ..............................15 - iii - Easley v. State, 424 S.W.3d 535, 537 (Tex. Crim. App. 2014) ...............................15 Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999) ..................................................................................9 Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645 (Tex. Crim. App. 2005) ...............................................................4 In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) ...............................................................4 In re Reed, 227 S.W.3d 273 (Tex. App.—San Antonio 2007, no pet.) ..................................12 Montoya v. State, 291 S.W.3d 420 (Tex. Crim. App. 2009) ...............................................................8 State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex. Crim. App. 1987) ...............................................................4 State ex rel. Rosenthal v. Poe, 98 S.W.3d 194 (Tex. Crim. App. 2003) .............................................. 4, 14, 15, 16 State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex. Crim. App. 1985) ...............................................................4 Turner v. State, 422 S.W.3d 676 (Tex. Crim. App. 2013) ...............................................................6 Statutes U.S. Const. amend. V, XIV .......................................................................................5 TEX. CONST. art. I, §§ 10, 19..................................................................................5, 6 TEX. CRIM. PROC. CODE ANN. art. 3.01 ....................................................................10 TEX. CRIM. PROC. CODE ANN. art. 20.02(a) ...................................................... 11, 12 TEX. CRIM. PROC. CODE ANN. art. 20.17........................................................... 16, 17 TEX. CRIM. PROC. CODE ANN. art. 24.4(c) ............................................................... vi TEX. CRIM. PROC. CODE ANN. art. 46B.004 ..................................................... passim - iv - STATEMENT OF THE CASE Nature of the Case This is a petition for a writ of mandamus. Relator has been arraigned for capital murder. He seeks a stay of all non- competency-related proceedings against him, including a stay of grand jury proceedings, based on incompetency. Trial Court/ The Honorable William Eichman, presiding judge of the Respondent 364th Judicial District Court of Lubbock County, Texas. Course of the On April 13, 2015, Mr. Chisum filed a Motion to Stay Grand Proceedings Jury Proceedings along with a supporting brief. On April 15, 2015, the court held a hearing on the motion. The court denied the motion from the bench at the conclusion of the hearing. Mr. Chisum then filed an emergency petition for a writ of mandamus and an emergency motion to stay the proceedings with the Court of Appeals for the Seventh District of Texas. That court has not yet ruled on the petition for a writ of mandamus, although it has notified counsel via phone that the motion to stay is denied. The District Attorney for Lubbock County will present the case to the grand jury the morning of April 16, 2015. -v- STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to Article V, § 5(c) of the Texas Constitution, Article 4.04 of the Texas Code of Criminal Procedure, and Rules 52 and 72.1 of the Texas Rules of Appellate Procedure. The Court of Criminal Appeals has concurrent, original jurisdiction with a court of appeals over a petition for a writ of mandamus against the judge of a district or county court. TEX. CONST. art. V, §§ 5, 6; Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003). Traditional practice, however, instructs a petition for a writ of mandamus should be presented first to the court of appeals. Padilla, 122 S.W.3d at 803. In this case, Relator has presented the petition for writ of mandamus and the motion to stay to the court of appeals. That court has indicated to counsel it has denied the motion to stay, although it has not yet reduced its order to writing. It has not ruled on the petition for a writ of mandamus. ISSUE PRESENTED Did the trial court fail to perform a ministerial duty and abuse its discretion when it failed to stay all proceedings, including grand jury proceedings, in Mr. Chisum’s case? - vi - No. ____________ In The Court of Criminal Appeals Austin, Texas In re Justin Chisum Relator On Appeal from Cause No. 2015-820,779 In the 364th Judicial District Court of Lubbock County, Texas The Honorable William R. Eichman, II, Presiding EMERGENCY PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE COURT OF CRIMINAL APPEALS: JUSTIN CHISUM, Appellant in docket number _______, submits this Emergency Petition for Writ of Mandamus in support of his request for the Court to enter an order directing the trial to stay grand jury proceedings in this case. -1- STATEMENT OF FACTS On February 2, 2015, Relator Justin Chisum was arraigned for the murder of his four-year-old daughter. On March 11, 2015, his appointed attorneys filed a Suggestion of Incompetency. (Appendix A). That same day, the trial court entered an Order for Examination Regarding Incompetency. (Appendix B). On March 23, 2015, the court-appointed psychologist examined Mr. Chisum. (Appendix C). He swore by affidavit dated April 8, 2015, Mr. Chisum is no currently competent to proceed in the defense of his case. I do not believe that heh has the sufficient present ability to consult with his attorneys with a reasonable degree of rational understanding, or a rational as well as factual understanding of the proceedings. On April 13, 2015, Mr. Chisum filed a Motion to Stay Grand Jury Proceedings. (Appendix D). The trial court held a hearing on the motion on April 15, 2015. It denied the motion from the bench. After the trial court denied the motion, Mr. Chisum filed with the Court of Appeals for the Seventh District of Texas an Emergency Petition for Writ of Mandamus along with an Emergency Motion for a Stay of Proceedings. On the morning of April 16, 2015, counsel for Mr. Chisum was notified the appellate court had denied the motion to stay. That court has not yet passed on the petition for a writ of mandamus. The Assistant District Attorney is presenting Mr. Chisum’s case to the grand jury on the morning of April 16, 2015. -2- SUMMARY OF THE ARGUMENT The trial court had a ministerial duty under the dictates of article 46B.004(d) of the Texas Code of Criminal Procedure to stay the grand jury proceedings. Because there is nothing to stop the District Attorney from now presenting the case to the grand jury, despite Mr. Chisum’s incompetence, Mr. Chisum has no adequate remedy other than to obtain a writ of mandamus from this Court. Article 46B.004(d) is an “if-then” statute, i.e. if certain evidentiary findings are made, then the trial court “shall” stay all non-competency proceedings in the case. The statute does not allow for the trial court to exercise any discretion. The trial court entered the requisite evidentiary finding. Accordingly, the trial court was then compelled by statute to stay all non-competency-related proceedings, which includes grand jury proceedings. The trial court’s failure to enter the statutorily mandated stay was a violation of a ministerial duty. Moreover, the constitutions of both the United States and Texas guarantee a defendant the right to the assistance of an attorney and to defend himself. It is impossible for an incompetent person to defend himself and to effectively communicate with his attorney. These constitutional imperatives line up with the legislative mandate to stay proceedings. Respondent abused its discretion when it failed to stay proceedings in light of evidence of serious mental incompetency. For these reasons, a writ of mandamus is warranted. -3- ARGUMENT I. THE TRIAL COURT FAILED TO PERFORM A MINISTERIAL ACT BY DENYING MR. CHISUM’S MOTION TO STAY Mandamus relief is available only if the relator can demonstrate: (i) he has no other adequate remedy at law; and (ii) under the relevant law and facts, the respondent “clearly abused” his discretion or the act sought to be compelled is “purely ministerial.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 215 (Tex. Crim. App. 2003). The relief sought under either the abuse of discretion or the ministrerial act provision must be “clear and indisputable” such that its merits are “beyond dispute.” Id. (quoting State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985)). a “ministerial” act is one which is accomplished without the exercise of discretion or judgment. If there is any discretion or judicial determination attendant to the act, it is not ministerial in nature. Nor is a ministerial act implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). A. No Adequate Remedy Exists to Redress Mr. Chisum’s Harm The relator in a petition for a writ of mandamus “can show that no adequate legal remedy exists at law if the remedy is ‘so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.’” In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (quoting Greenwell v. -4- Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648-49 (Tex. Crim. App. 2005)). As discussed in greater detail below, the trial court was compelled by statute to stay the grand jury proceedings in this case. The court failed to comply with statute, and the District Attorney intends to proceed with presentment of the case to the grand jury. The only way for Mr. Chisum to have his statutory rights protected is for this Court to now stay the proceedings in his case. B. The Trial Court had a Ministerial Duty to Stay the Proceedings It is axiomatic that the government should not prosecute an incompetent person. This principle, well-accepted centuries before America’s creation, is acknowledged in the Due Process Clauses of both the United States and Texas Constitutions. See U.S. CONST. AMEND. V, XIV; TEX. CONST. art. I, §§ 10, 19. These Clauses establish the minimum protections afforded to defendants. The Texas Legislature has gone beyond the bare requirements of the Due Process Clause in protecting the potentially and actually incompetent accused. TEX. CRIM. PROC. CODE ANN. cpt. 46B. One of the ways the Legislature did this is found in Article 46B.004(b), which mandates: “If the court determines there is evidence to support a finding of incompetency, the court . . . shall stay all other proceedings in the case.” TEX. CRIM. PROC. CODE ANN. art. 46B.004(d) (emphasis added). As detailed below, this statute requires once a court makes certain -5- requisite evidentiary findings it must stop the case from proceeding until the issue of the accused’s competence is resolved. Because the trial court, in this case, made the requisite evidentiary findings, the statute directs it to stop all actions not related to Mr. Chisum’s competency. This includes any grand jury review of the case. 1. The Texas Legislature Steadfastly Protects Potentially Incompetent Defendants Forcing an incompetent person to stand trial violates due process. This ancient principle is an unquestioned pillar in American’s common law heritage. As Blackstone explained, an incompetent person must not face trial, “for how can he make his defence?” WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAWS OF ENGLAND 24-25 (19th ed. 1836). In America, this long-accepted principle became rooted in the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution and in Article 1, sections 10 and 19 of the Texas Constitution. Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 2574, 120 L.Ed.2d 353 (1992) (citing the Fourteenth Amendment as protecting against trying an incompetent person); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975) (citing the Fifth Amendment as protecting against trying an incompetent person); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966) (citing Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956)); Turner v. State, 422 S.W.3d 676, 688-89 (Tex. Crim. App. 2013). “It has long been accepted that a person whose mental condition is such -6- that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope, 420 U.S. at 171, 195 S.Ct. at 903. “[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Id. at 172, 95 S.Ct. at 904 (citing Robinson, 383 U.S. at 385, 86 S.Ct. at 842). Review of Chapter 46B of the Code of Criminal Procedure reveals the Texas Legislature is especially vigilant when it comes to protecting a potentially incompetent person. For example, article 46B.004(c-1) deals with the triggering mechanism for when a court should order a competency evaluation. In Pate, the Supreme Court favorably cited an Illinois statute that “jealously guard[ed]” the due process right to a fair trial in cases with potentially incompetent defendants. 383 U.S. at 395, 86 S.Ct. at 842. The statute required the court to order a competency evaluation where the evidence raised a “bona fide doubt” about the defendant’s competency. Id., 86 S.Ct. at 842. Following Pate, the Texas Legislature and the Court of Criminal Appeals adopted the “bona fide doubt” standard. Alcott v. State, 51 S.W.3d 596, 599 (Tex. Crim. App. 2001). In 2003, in an apparent attempt to abrogate the bona fide doubt standard and impose an even lower requirement for triggering competency review, -7- the Legislature created the unique “suggestion” of incompetency. The Court of Criminal Appeals interpreted the suggestion of incompetency as simply an iteration of the bona fide doubt standard. Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). The next legislative session, the Legislature soundly abrogated the bona fide doubt standard by passing article 46B.004(c-1), which states “the court is not required to have a bona fide doubt about the competency of the defendant.” To the extent the Supreme Court and the Court of Criminal Appeals have held or intimated due process requires the presence of a bona fide doubt before a court can inquire into a defendant’s competency, the Texas Legislature has clearly written the statute to impose a much lower triggering mechanism. It has gone beyond the bare protections of due process to protect an incompetent person accused of committing a crime. 2. The Plain Language of Article 46B.004(d) Includes Grand Jury Proceedings The Legislature continued in this direction with the very next section, wherein it has mandated “[i]f the court determines there is evidence to support a finding of incompetency, the court . . . shall stay all other proceedings in the case.” TEX. CRIM. PROC. CODE ANN. art. 46B.004(d) (emphasis added). The plain language of this statute mandates the trial court stay all non-competency-related proceedings, which includes grand jury proceedings. -8- The purpose of analyzing a statute is to determine and give effect to the Legislature’s intent. When determining this intent, a reviewing court must first look to the plain meaning of the statue, for “it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). “[P]enal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal as well as other statutes; and they are not to be construed so strictly as to defeat the obvious intention of the legislature.” United States v. Lacher, 134 U.S. 624, 627, 10 S.Ct. 625, 628, 33 L.Ed. 1080 (1890). As Justice Story said, I agree to that rule in its true and sober sense; and that is, that penal statutes are not to be enlarged by implication, or extended to cases not obviously within their words and purport. But where the words are general, and include various classes of persons, I know of no authority which would justify the court in restricting them to one class, or in giving them the narrowest interpretation, where the mischief to be redressed by the statute is equally applicable to all of them. . . In short, it appears to me that the proper course in all these cases is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature. Johnson v. Southern Pac. Co., 196 U.S. 1, 18, 25 S.Ct. 158, 162, 49 L.Ed. 363 (1904) (quoting United States v. Winn, 3 Sumn. 209, Fed. Cas No. 16,740). This principle has endured for generations. When interpreting a statute, the aim of the -9- court must always be to give the statute’s words their fair meaning in accord with the evidence intent of the legislature. United States v. Cook, 384 U.S. 257, 262, 86 S.Ct. 1412, 1514, 16 L.Ed.2d 516 (1966). The relevant phrase in article 46B.004(d) is “all other proceedings.” It is difficult to imagine a broader phrase. However, there is no definition of “all,” “other,” or “proceedings” in the Code of Criminal Procedure, nor is there any caselaw discussing grand jury proceedings in the context of 46B.004(d). Consequently, the reviewing court must itself analyze the statute. See TEX. CODE CRIM. PROC. ANN. art. 3.01. (“All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language . . .”). “All” is the word with the broadest meaning in the English language. It means “every one.” WEBSTER’S COLLEGE DICTIONARY 36 (4th ed. 2000). “Other” is “different or distinct from that or those referred to or implied.” Id. 1021. Because article 46B.004(d) refers to “all other proceedings,” the question becomes which proceedings is the article dealing with. By the statute’s terms, the court must prohibit any kind of proceeding outside of the category referenced in the statute. Chapter 46B of the Texas Code of Criminal Procedure governs the issue of an accused person’s competency. See Fredericksburg Care Co. v. Perez, __ S.W.3d __, 2015 WL 1035343 (Tex. 2015) (“[W]e will try to avoid construing a - 10 - statutory provision in isolation from the rest of the statute; we should consider the act as a whole, and not just single phrases, clauses, or sentences.”). Article 46B.004 itself deals with the informal inquiry into the accused’s incompetency. Article 46B.004(e), immediately following the provision in question, discusses “proceedings under this chapter,” which chapter is titled “Incompetency to Stand Trial.” The article as a whole governs how to identify and handle incompetent and potentially incompetent defendants. Accordingly, the “other” proceedings referenced in 46B.004(d) are ones that do not deal with the accused’s competency. Finally, a “proceeding” is “a particular action or course of action.” WEBSTER’S DICTIONARY 1144 (4th Ed. 2000). In the legal realm, a proceeding is “the form and manner of conducting juridical business before a court or judicial officer . . . including all possible steps in an action from its commencement to the execution.” BLACK’S LAW DICTIONARY 1368 (4th ed. 1951). The convening of a grand jury is a course of action that is part of the criminal process. In fact, “grand jury proceedings” is a phrase in common parlance used and understood by both attorneys and laymen alike. When a party seeks to quash or modify a subpoena issued by a grand jury, the cause in both federal and Texas courts bears the caption “In re Grand Jury Proceedings.” Moreover, the Code of Criminal Procedure itself governs “[t]he proceedings of the grand jury . . .” See TEX. CRIM. PROC. CODE ANN. art. 20.02(a). “[T]he term - 11 - ‘proceedings’ as used in Article 20.02(a) could reasonably be understood as encompassing matters that take place before the grand jury, such as witness testimony and deliberations.” Similarly, the Texas Rules of Evidence establish the evidentiary rules are not applicable in “proceedings before grand juries.” TEX. R. EVID. 101(d)(1)(B). In re Reed, 227 S.W.3d 273, 276 (Tex. App.—San Antonio 2007, no pet.); Barnhart v. State, No. 13-08-00511-CR, 2010 WL 3420823, at *11 (Tex. App.—Corpus Christi Aug. 31, 2010, pet. ref’d). This conclusion aligns with the legal definition of a proceeding, set forth above. Every step in the formation, investigation, and ultimate action of the grand jury comprises the whole of the “grand jury proceeding.” It is clear the Texas Legislature, in line with common understanding, considers the grand jury’s convening, and all actions following that, to be a “proceeding.” Synthesizing this analysis, the Legislature’s intentions are unmistakable. When it said “all other proceedings” it meant every action not related to determination of the accused’s competence. Grand jury proceedings do not involve determination of whether the accused is competent to stand trial. Accordingly, the grand jury convening and reviewing a case is a proceeding encompassed in article 46B.004(d)’s “all other proceedings.” The cannon of expressio unius est exclusio alterius, whereby the court looks not only at what the statute includes but also what it does not include, is also - 12 - instructive. First, the mandates of article 46B.004(d) do not have a defined beginning or end. The article does not say, “if, after indictment, the court determines there is evidence to support a finding of incompetency, the court . . . shall stay all other proceedings in the case.” No other provision of the article sets a time when concern for the accused’s competency can be raised.1F1 See id. art. 46B.004(a) (stating, without temporal parameters, either party or the trial court may suggest the defendant may be incompetent); Rothgery v. Gillespie County, Texas, 554 U.S. 191, 194, 128 S.Ct. 2578, 2581, 171 L.Ed.2d 366 (2008) (indicating a person formally accused at the initial appearance is a “defendant”). The issue of the accused’s competency can be raised at any time. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966) (holding a trial court must evaluate a defendant’s competence whenever the evidence raises concerns about it). Consequently, the trial court is not bound to a certain time or stage in the criminal process when it can make its determination regarding whether it should investigate the defendant’s competency. Article 46B.004(d) applies at any point in time. Also, 46B.004(d) does not contain any specific modifiers as to which “proceedings” the trial court must stay. It does not direct the court to stay “criminal proceedings;” “civil proceedings;” “trial proceedings;” or “court 1 It is worth noting, however, article 46B.004 “includes language to encourage early and prompt court review and evaluations of persons who might lack competency to be tried.” BRIAN SHANNON & DANIEL BENSON, TEXAS CRIMINAL PROCEDURE AND THE OFFENDER WITH MENTAL ILLNESS: AN ANALYSIS AND GUIDE 52 (4th Ed. 2008). - 13 - proceedings.” Instead, as discussed above, it broadly includes all proceedings not related to the competency determination. With these observations at hand, and stepping back to look at the entirety of article 46B.004(d), the if-then command of the statute becomes clear. If the court makes the necessary evidentiary determination, then it must stay all proceedings not related to the accused’s competence. This includes grand jury proceedings. 3. The Trial Court Failed to Follow Statutory Dictate As discussed earlier, a ministerial act is one “accomplished without the exercise of discretion or judgment.” Poe, 98 S.W.3d at 215. “If there is any discretion or judicial determination attendant to the act, it is not ministerial in nature.” Id. In the case at bar, article 46B.004(d) is a legislative directive: given the requisite evidentiary findings, the court “shall stay all other proceedings in the case.” The Legislature did not leave any room for the trial court to exercise discretion. Once the evidentiary finding was made, the court was compelled to stay the proceedings. There were no additional determinations for the court to make before staying the proceedings. See id. The court did not have to weigh conflicting claims or collateral matters requiring legal resolution. See id. The court was clearly instructed, in mandatory language, that it was to stay the - 14 - proceedings. It failed to do so. That failure constituted a violation of a ministerial duty. See id. Consequently, a writ of mandamus is justified. II. A STAY IS REQUIRED TO PROTECT MR. CHISUM’S CONSTITUTIONAL RIGHTS Article I, Section 10 of the Texas Constitution secures the right of the accused to be heard “by himself or counsel, or both.” This right “is a right of which an accused can under no circumstances be deprived.” Carlile v. State, 451 S.W.2d 511, 512 (Tex. Crim. App. 1970). The Court of Criminal Appeals has “interpreted this provision to provide the ‘right to appear by counsel.’” Easley v. State, 424 S.W.3d 535, 537 (Tex. Crim. App. 2014). The United States Supreme Court has held a defendant’s right to counsel attaches at the initial appearance proceedings. Rothgery v. Gillespie County, Texas, 554 U.S. at 209, 128 S.Ct. at 2590. “[B]ringing a defendant before a court for initial appearance signals a sufficient commitment to prosecute and marks the start of adversary judicial proceedings.” Id., 128 S.Ct. at 2590. The Court in Rothgery specifically passed on proceedings conducted under article 15.17 of the Texas Code of Criminal Procedure and held the right to counsel attaches at such proceedings. Id., 128 S.Ct. at 2590. Regardless of when a right to counsel or the right to be heard attaches, the right is of little value if the defendant is incompetent. Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain silent without penalty for doing so. Riggins v. Nevada, 504 U.S. 127, 139, 112 S.Ct. 1810, 1817, 118 L.Ed.2d 479 (1992) (Kennedy, J., concurring in judgment). An incompetent defendant cannot communicate with counsel. He - 15 - cannot be heard. Though he is physically present, because of his mental condition he “is in reality afforded no opportunity to defend himself.” Drope, 420 U.S. at 171, 95 S.Ct. at 904. The reports of at least four doctors, one layperson, and one person familiar with Mr. Chisum all indicate that Mr. Chisum is an incompetent person. (See Affidavit of Dr. Morgan (Appendix C, pg. 8); Affidavit of Michael Chisum (Appendix C, pg. 5); Motion Suggesting Incompetence and Request for Examination - Affidavits of Phillip Resnick, M.D; Phillip Davis, Ph.D., Arun Patel, M.D.; and April Carter (Appendix A)). Every court to pass upon his case has reached a similar conclusion. See State v. Chisum, No. 2015-820,779, “Order for Examination Regarding Incompetency,” (Mar. 11, 2015) (Appendix B); In the Guardianship of Justin Chisum, An Incapacitated Person, No. 2015-785,001 (Mar. 9, 2015). Mr. Chisum is severely mentally incapacitated. Criminal proceedings were initiated against Mr. Chisum on February 2, 2014. Since that time, the State has been able to build its case against Mr. Chisum. Mr. Chisum’s defense team, on the other hand, has not been able to similarly conduct a full investigation of Mr. Chisum’s version of the facts due to his extremely deteriorated mental state. It has long been common practice for a defendant’s attorney to put together a packet setting forth an explanation of the facts of the case for the grand jury’s review. See Op. Tex. Att’y Gen. No. H-508 (1975) (noting the practice and holding such a practice does not offend any traditional rules of grand jury proceedings). Compilation of such a packet is impossible until Mr. Chisum is returned to competency. Moreover, at this point, the grand jury, were it allowed to review Mr. Chisum’s case, could call Mr. Chisum to testify before it. TEX. CRIM. PROC. CODE ANN. art. 20.17. So far, Mr. - 16 - Chisum has been unable to communicate with counsel about the facts of the case. The statute permitting the grand jury to question the accused mandates, Prior to any questioning of an accused or suspected person who is subpoenaed to appear before the grand jury, the accused or suspected person . . . shall be given a reasonable opportunity to retain counsel or apply to the court for an appointed attorney and to consult with counsel prior to appearing before the grand jury. Id. 20.17(b). Mr. Chisum “is not currently competent to proceed in the defense of his case.” (Affidavit of Dr. Morgan, pg. 1). He lacks “the sufficient present ability to consult with his attorneys with a reasonable degree of rationl understanding, or a rational as well as factual understanding of the proceedings.” (Id.). Were the grand jury to subpoena him, and assuming Mr. Chisum would be able to communicate with the grand jury, he would not understand the rights he would be waiving in doing so. The State commenced adversary judicial proceedings against Mr. Chisum on February 2, 2015, at the initial appearance. See Rothgery, 244 U.S. at 209, 128 S.Ct. at 2590. Under the Texas Constitution, Mr. Chisum has the right to counsel and the right to be heard. Mr. Chisum, however, cannot assert these rights due to his mental state. By failing to stay the proceedings despite strong evidence of severe incompetence, Respondent abused his discretion. See Poe, 98 S.W.3d at 215. III. PRAYER Relator Justin Chisum prays this Court would find that the trial court failed to perform a ministerial duty under the Texas Code of Criminal Procedure and abused its discretion in disregarding Mr. Chisum’s federal and state constitutional rights to an attorney and to defend himself when it refused to grant Mr. Chisum’s Motion to Stay Grand Jury Proceedings. Accordingly, Mr. Chisum asks the Court - 17 - to issue a writ of mandamus directing Respondent to enter an order staying all proceedings, including grand jury proceedings, in this case. Respectfully submitted, Law Office of Allison Clayton P.O. Box 64752 Lubbock, Texas 79464-4752 Phone No.: (806) 773-6889 Fax No.: (888) 688-4515 By: Allison Clayton State Bar No. 49059587 Allison@AllisonClaytonLaw.com - 18 - CERTIFICATE OF SERVICE I certify that on April 16, 2015, a copy of this brief was served on opposing counsel, Jeffrey S. Ford of the Lubbock County District Attorney’s Office and on the trial court, the Honorable William R. Eichman, II, of the 364th District Court of Lubbock County, Texas, via electronic mail. Allison Clayton CERTIFICATE OF COMPLIANCE I certify the foregoing Brief on the Merits complies with Rules 9.4(i)(2)(A) and 70.3 of the Texas Rules of Appellate Procedure. The brief, excluding those portions detailed in Rule 9.4(i) of the Texas Rules of Appellate Procedure, is 4141 words long. I have relied upon the word count function of Microsoft Word, which is the computer program used to prepare this document, in making this representation. Allison Clayton - 19 - Appendix A - 20 -