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

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WR-82,875-01,02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/17/2015 9:52:07 AM Accepted 4/17/2015 11:17:39 AM ABEL ACOSTA CLERK NO. WR-82,875-01 and WR-82,875-02 RECEIVED COURT OF CRIMINAL APPEALS 4/17/2015 ABEL ACOSTA, 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 MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MANDAMUS AND/OR PROHIBITION FROM CAUSE NO. 10-DCR-054233 IN THE 268TH DISTRICT COURT, FORT BEND COUNTY Real Party in Interest’s Response to Relator’s Motion for Leave to File Petition for Writs of Mandamus and/or 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 IDENTITY OF PARTIES AND COUNSEL The parties identified by the Relator are correct and does not require supplementation. Tex. R. App. P. 52.4(a). TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ______________________________ 2 INDEX OF AUTHORITIES __________________________________________ 3 I. INTRODUCTION _______________________________________________ 5 II. ARGUMENT ___________________________________________________ 7 Respondent’s act is not purely ministerial ______________________________ 7 Relator has an adequate remedy at law _______________________________ 11 Trial Counsel is not a liar __________________________________________ 13 III. CONCLUSION ________________________________________________ 16 CERTIFICATION OF COMPETENT EVIDENCE _______________________ 18 CERTIFICATE OF COMPLIANCE _________________________________ 18 CERTIFICATE OF SERVICE _______________________________________ 19 2 INDEX OF AUTHORITIES CASES Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981) ...................................14 Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) .............................8 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) ....................................7 Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979) .........................10 Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008) ..........................................6 Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App. 1980) ...............................10 Gomez v. State, 704 S.W.2d 770, 773 (Tex. Crim. App. 1985) ..............................15 Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 648- 49 (Tex. Crim. App. 2005) ...................................................................................12 Guy v. State, 160 S.W.3d 606, 617 (Tex. App. 2005) .............................................16 In re State ex re. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013) .............6 Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990) ........................ 14, 15 Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) .............................12 Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987 ................................ 12 State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) ......6, 11 State ex rel. Wade v. Mays, 689 S.W.2d 893, 900 (Tex. Crim. App. 1985) ..............6 State ex rel. Young v. Sixth Judicial Dist. Court of Appeals At Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) ..............................................................8 Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981). ............................................................................................8 Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013) ................. passim 3 RULES & STATUTES Texas Rule of Appellate Procedure 52.4(a) ...............................................................2 Texas Code of Criminal Procedure A r t i c l e 44.01(c) ....................................11 4 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 RESPONSE TO REALTOR’S MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF MANDAMUS AND/OR PROHIBITION 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 Response to the State’s Motion for Leave to File Petition for Writs of Mandamus and/or Prohibition, and requests that this Court deny Relator leave to file and lift the stay of Mr. Turner’s current competency trial. I. INTRODUCTION Relator argues that this Court should grant leave to file because this Court has prohibited Respondent from considering Mr. Turner’s present competency when evaluating feasibility for a retrospective competency trial and prohibited him from 5 empaneling a jury for any reason other than retrospective competency. Regardless of arguments about jurisdiction, the merits of the underlying cause, and the propriety of re-considering this Court’s decision on direct appeal, the issue here is Relator’s inability to meet the stringent and well-established requirements for this Court to grant leave to file a petition for a writ of mandamus1. Mandamus is a drastic remedy, only to be used in extraordinary situations when (1) the act sought to be compelled is ministerial and (2) the party seeking relief shows that there is no adequate remedy at law. In re State ex re. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013); State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994). “[A]n extraordinary writ will not issue when it is necessary to try and decide conflicting claims or collateral questions which require legal controversy for their settlement.” State ex rel. Wade v. Mays, 689 S.W.2d 893, 900 (Tex. Crim. App. 1985). Relator addresses several collateral questions in its Petition, illustrating that Mandamus in not appropriate. 1 The same requirements apply to writs of prohibition. See Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008). 6 II. ARGUMENT 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). RESPONDENT’S ACTION IS NOT PURELY MINISTERIAL What to do, not how to do it Relator is asking this Court to force Respondent to ignore the evidence, research, and arguments that he has reviewed and evaluated and “to determine the feasibility of a retrospective competency trial on factors other than Turner’s present competency.” See Relator’s Petition, p. 23. Relator does not state what “factors” it believes should be considered, leaving it to Respondent to properly exercise his discretion. A feasibility determination is required to overcome the acknowledged and evident problems with retrospective competency trials. Brandon v. State, 599 S.W.2d 567, 573 (Tex.Crim.App.1979) (citing Dusky v. United States, 362 U.S. 402, (1960)). However, there is nothing ministerial about conducting a feasibility determination. Respondent must identify and consider all “pertinent factors” to reach a conclusion regarding the Constitutionality of a retrospective competency trial based upon the unique facts in Mr. Turner’s case. This situation is analogous to 7 a trial court’s ministerial duty to rule on a proper motion, but there is not a ministerial duty to rule a certain way. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). Relator must show that it “has a clear right to the relief sought-that is to say, when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.” Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011)(emphasis in original). This Court’s directive to Respondent was clear: determine if a retrospective competency trial is presently feasible. This Court explicitly instructed the Respondent on what he must do when making that determination: take into account (1) how much time has passed, (2) what evidence is available, and (3) “any other pertinent considerations.” The law does not prohibit Respondent’s actions—it authorizes it. The opinion requires Respondent to account for “pertinent considerations,” but does not name or describe them further. Respondent must necessarily exercise discretion to follow this Court’s Order. An act is ministerial “when the law clearly spells out the duty to be performed ... with such certainty that nothing is left to the exercise of discretion or judgment.” Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981). There is no checklist of factors that a trial court must consider for a feasibility 8 determination. Relator is unable to provide specifics regarding particular factors to be considered. Relator cannot point to any authority that spells out Respondent’s duty when determining feasibility other than the requirements in this Court’s opinion. The only limitation this Court placed upon Respondent was that the considerations must be “pertinent.” Respondent has discretion to identify and evaluate pertinent considerations in this case. Relator never asserts that identifying “pertinent considerations” is ministerial. No jury was ever called to determine feasibility Exercising his discretion, after reviewing all of the evidence and listening to the arguments of counsel, Respondent identified current competency as a “pertinent consideration.” Further exercising his discretion, Respondent decided that resolution of the issue of current competency would be best accomplished with assistance from a jury. Current competency is just one “pertinent consideration” Respondent identified. For months, Respondent has reviewed briefing by counsel, reports of unsuccessful psychological evaluations, exhibits submitted by the parties, and other voluminous amounts of information in order to make a sound decision regarding the feasibility of a retrospective competency trial in this case. Respondent has never taken any action to empanel a jury, or expressed any 9 opinion that a jury would be proper, for the purpose of determining feasibility. Relator argues that Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App. 1980) is controlling; in fact, it is inapplicable. Watson was given a pre-trial competency trial in which a jury found him “sane to enter a plea.” This Court found error in that proceeding and remanded the case for a feasibility determination based on the facts of that case. On appeal from the retrospective competency trial, despite overwhelming evidence to the contrary, Watson argued that a feasibility determination had not been made, and if it had, it should have been made by a jury. Current competency was never an issue in Watson. And, here, Respondent has never suggested that a jury should determine feasibility. 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. Case-by-case basis 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). A retrospective determination of competency may be made within the limits of due process, depending on the facts of the particular case. Id. If the application of the law to the facts will vary in every instance, the act is not ministerial. 10 RELATOR HAS AN ADEQUATE REMEDY AT LAW Article 44.01(c) of the Texas Code of Criminal Procedure provides Relator with an adequate remedy: “The state is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment.” This is not a pre-trial competency trial. This is not a competency trial that is being held during trial. This is not a post-conviction pre-appeal competency trial. Mr. Turner has been convicted and has appealed the judgment. This Court specifically instructed Respondent to forward the record of these proceedings, regardless of the outcome, so that the appeal can be reinstated. Relator’s impatience is not a proper basis to ignore the requirements for a Writ of Mandamus. Mandamus is not meant to provide additional appellate avenues. It is only to be used “to correct judicial action that is clearly contrary to well-settled law, whether that law is derived from a statute, rule, or opinion of a court.” State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (emphasis in original). In this case, Relator has not cited to any well-settled law from any source that is clearly contrary Respondent’s actions. Relator agrees Relator agrees that this Court’s instruction “seems to give Relator an adequate remedy.” See Relator’s Petition, p. 8. And Realtor describes the remedy available to it under Article 44.01(c). However, Relator believes that utilizing that remedy 11 would “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). Relator lists many potential witnesses, exhibits, and other issues related to the case generally that appear completely irrelevant to a current competency trial. The inconvenience of calling witnesses and transcribing many hours of jail calls is not sufficiently burdensome enough to ignore the adequate remedy at law that Relator agrees is available2. This Court has jurisdiction and can review any issue in this case whether it is raised by a party or not. Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012). Relator will have an opportunity to attack any alleged errors upon reinstatement. 2 This Court has provided examples of exigent circumstances overcoming a future remedy: When, for instance, a trial court erroneously removed appointed counsel before trial, we found that the defendant had no adequate remedy, for mandamus purposes, despite the availability of appeal sometime after trial. Using “the appellate process in this situation to correct this particular ill would be too burdensome and would only aggravate the harm and most likely would result in a new trial compelling relator to again endure a trip through the system.” In the pretrial habeas corpus context, we have found that appeal after trial was not an adequate remedy for certain double jeopardy claims because protection of the constitutional right of double jeopardy requires review before exposure to jeopardy occurs. Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005) (citations omitted) (quoting Smith v. Flack, 728 S.W.2d 784, 792 (Tex.Crim.App.1987)). 12 Relator has failed to show that (1) Respondent’s act is purely ministerial and (2) that it has no adequate remedy at law. Mandamus relief is not proper. TRIAL COUNSEL IS NOT A LIAR Improper forum Relator argues that this Court should reconsider its decision to remand this case. Although it is understandable that Relator would seek this relief, it is improper to do so here. In a Mandamus proceeding the only issue is Relator’s inability to show that Respondent’s actions are purely ministerial and that it does not have an adequate remedy at law. A blatantly irrelevant argument confuses the issues and wastes the Court and the parties’ time. “uninvited and unsubstantiated” In its attempt to re-litigate finalized issues, Relator personally and professionally attacks Mr. Turner’s trial counsel Pat McCann: Turner’s attorney, Pat McCann is well known to this Court, the trial court, and the public as a zealous attorney who has kept his clients alive on death row for many years through his litigious efforts. The trial court observed counsel’s interactions with Turner and determined that Turner did not like his counsel, not that Turner was incompetent, and the trial court could easily have seen through trial counsel’s strategy to save Mr. Turner’s life by having him found incompetent in concert with Dr. Axelrad’s report. See, Commonwealth v. Blakeney, No. 653 CAP, 2014 WL 7392249,*29 (Pa. Dec. 29, 2014) (Castille, C.J., concurring) (“As I explained in Commonwealth v. Bomar, 104 A.3d 1179 (Pa. 2014), retrospective competency claims are particularly ripe for abuse by anti-death penalty advocacy groups like the [Federal Community 13 Defender’s Office], like-minded experts in their effective employ, and capital defendants themselves, who obviously have nothing to lose by abetting a fraudulent claim”). See Relator’s Petition (footnotes omitted), p. 20 Relator’s argument demonstrates contempt for trial counsel and the legal proceedings in this case. Unashamedly, Relator disparages Mr. McCann as an anti- death penalty activist who will do anything, including gaming the legal system and strategize to have a competent client found incompetent “in concert with Dr. Axelrad’s report.” Texas courts have a history of preserving the integrity of the legal profession by explicitly condemning and often reversing convictions based upon comments of the type that Relator makes in its Petition. This Court has reversed and remanded when a prosecutor commented that defense counsel “represents the criminal. His duty is to see that his client gets off even if it means putting on witnesses who are lying.” Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981). Mr. McCann has not represented Mr. Turner since the conviction and death sentence. Relator is not responding to any legal argument that has been put forth in this proceeding. When made in closing arguments, these comments are the type of “uninvited and unsubstantiated accusation of improper conduct directed at a defendant's attorney” for which this Court has a “special concern.” Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990). 14 In Gomez v. State, this Court described an improper argument by a prosecutor: In the instant case, the State, in its second improper argument, referred to appellant's attorney by name, made a specific uninvited and unsubstantiated accusation, and linked that accusation to the evidence raised in the case. Further, appellant objected, but the trial court overruled the objection. Under these circumstances, we do not believe that this second argument was harmless. Gomez v. State, 704 S.W.2d 770, 773 (Tex. Crim. App. 1985). Here, Relator names Mr. McCann specifically and intimates that his representation of clients is for publicity and in pursuit of a social cause. This is the equivalent of a closing argument in which a prosecutor says that defense attorneys “know how to get people off the charges they are charged with.” Orona v. State, 791 S.W.2d 125, 127-28 (Tex. Crim. App. 1990). Relator accuses Mr. McCann of fraudulently claiming that a client was incompetent and by swearing to facts supporting that claim in an affidavit.3 This accusation is directly followed by a comment about activists, hired experts, and death row inmates that make fraudulent retrospective competency claims4. 3 Relator suggests that Respondent “could easily have seen through trial counsel’s strategy.” If this is true, Relator is suggesting that Respondent allowed Mr. McCann to perpetrate the fraud. 4 Given Relator’s attempt at parallel argument, it appears that Dr. Axelrad is being equated to one of the “like-minded experts in their effective employ” that also abuse the system. Dr. Axelrad was never the defense’s expert at trial. 15 Relator’s character assassination of trial counsel is an attempt to somehow strengthen its legal position with an argument that “refers to defense counsel personally . . . and explicitly impugns defense counsel's character. Guy v. State, 160 S.W.3d 606, 617 (Tex. App. 2005). These cases, for obvious reasons, deal with jury argument. However, attacks in public written pleadings filed with this Court are at least, if not more, offensive. In this case, Relator is not in front of an audience subject to being prejudiced and inflamed like a jury may be. Instead, this Court is in a position to thoughtfully consider Relator’s tactic when evaluating the credibility of its pleadings and to address Relator’s actions as it sees fit. III. CONCLUSION This Court was very straightforward when it instructed Respondent to determine present feasibility of a retrospective competency trial. The instructions included a mandate of what he must consider. This Court did not place any limitations on Respondent’s required “case-by-case” evaluation. It is impossible to consider this feasibility act to be ministerial. The facts and procedural posture of this case are unique and Relator does not have a “clear right” to a particularized process with specifically chosen factors. And, Relator has a straightforward adequate remedy at law under the Code of Criminal Procedure. 16 WHEREFORE, PREMISES CONSIDERED, the real party in interest respectfully requests that this Honorable Court deny Relator’s Motion for Leave to File Petition for Writs of Mandamus and/or Prohibition and lift the stay of his current competency trial. Respectfully submitted, /s/ Robert A. Morrow ____________________________ ROBERT A. MORROW MorrowBar No. 14542600 State 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 17 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 Morrow CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this petition contains 3,248 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 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. /s/ Robert A. Morrow ____________________________ Robert A. Morrow Morrow 18 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above Response to the State’s Motion for Leave to File Petition for Writs of Mandamus and/or Prohibition was delivered electronically on April 17, 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 Morrow 19