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 ( 2015 )

WR-82,875-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/24/2015 12:00:00 AM
August 24, 2015 Accepted 8/24/2015 8:13:17 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 Reply 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
TABLE OF CONTENTS
INDEX OF AUTHORITIES __________________________________________ 3
STATEMENT REGARDING ORAL ARGUMENT _______________________ 4
DESIGNATED ISSUES _____________________________________________ 5
1. Must a defendant be presently competent in order for a retrospective
competency trial to occur? ________________________________________ 5
2. If so, does the trial court have the authority to require a jury to determine
the issue of present competency? ___________________________________ 5
ARGUMENT _____________________________________________________ 6
CONCLUSION ___________________________________________________ 12
CERTIFICATE OF COMPLIANCE___________________________________ 14
CERTIFICATE OF SERVICE _______________________________________ 15
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INDEX OF AUTHORITIES
CASES
Armstrong v. State, 340 S.W.3d 759, 765 (Tex. Crim. App. 2011) ................................................ 7
Callaway v. State, 594 S.W.2d 440, 443 (Tex. Crim. App. 1980). ................................................ 9
Drope v. Missouri, 420 U.S. 162, 183 (1975)................................................................................. 7
Ex parte Hagans, 558 S.W.2d 457, 463 (Tex. Crim. App. 1977) .................................................. 9
Ex parte Mines, 26 S.W.3d 910 (Tex. Crim. App. 2000) ............................................................... 8
Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App. 1980) ................................................ 8, 11
Ex parte Winfrey, 581 S.W.2d 698, 699 (Tex. Crim. App. 1979) .................................................. 9
Greene v. State, 264 S.W.3d 271, 272 (Tex. App.—San Antonio 2008) ..................................... 11
Huff v. State, 807 S.W.2d 325, 326-7 (Tex. Crim. App. 1991) ...................................................... 9
In re Allen, 462 S.W.3d 47, 48 (Tex. Crim. App. 2015) .............................................................. 11
Mart. v. Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) ................................................................ 11
Ryan v. Gonzales, 133 S. Ct. 696 (2013) ......................................................................................... 8
Smith v. Flack, 728 S.W.2d 784, 788-89 (Tex. Crim. App. 1987) ................................................. 8
State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007)................................................. 10
State v. Thomas, 428 S.W.3d 99, 105 (Tex. Crim. App. 2014), reh'g denied (May 21, 2014) .... 10
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i)(3)................................................................................................................................. 14
Rule 21.1 ......................................................................................................................................... 9
Rule 21.9 ......................................................................................................................................... 9
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STATEMENT REGARDING ORAL ARGUMENT
Oral argument would be helpful in this case. The designated issues address
fundamental, constitutional components of a judicially created process as applied in
a death penalty case. Given the extraordinary nature of mandamus relief, a verbal
exchange by the Relator and Real Party in Interest and the opportunity for this Court
to pose questions to the parties will assist in the Court’s analysis.
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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 REPLY 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 Reply Brief on Designated Issues.
DESIGNATED ISSUES
Relator, Mr. Turner, and the trial court have briefed 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?
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ARGUMENT
A retrospective competency trial is unlike any other proceeding in law and it
must be addressed as such. Although there may be similarities with other statutory
procedures, they are minor compared with the differences. Most distinctive is that
a retrospective competency trial is an attempt to take the trial court, parties,
defendants, and witnesses back to a period of time when a fundamental mistake was
made.
It’s a criminal proceeding in which a defendant has due process rights,
including a right to effective assistance of counsel during the proceeding and on
direct appeal. It is unconstitutional unless a court explicitly determines that is
feasible; this Court and the U.S. Supreme Court continue to repeatedly and directly
warn of the dangers of attempting to rewind the clock.
If this proposed remedy has any hope of being successful, constitutionally and
factually, a defendant must be competent during the trial. The trial court who is
familiar with the facts and impediments to conducting a constitutionally sound
retrospective competency trial has the authority to permit a jury to make the
determination of the defendant’s current competency if appropriate.
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A DEFENDANT MUST BE PRESENTLY COMPETENT IN ORDER FOR A
RETROSPECTIVE COMPETENCY TRIAL TO OCCUR
One of a kind
A retrospective competency trial must be examined as the unique thing that it
is. It is an acknowledgement that a defendant has been denied due process. It is a
risky attempt to remedy that error. So risky that without a formal finding of
feasibility it is unconstitutional to proceed. Drope v. Missouri, 420 U.S. 162, 183
(1975). It is not created or guided by statute.
A retrospective competency trial does not just look back in time, it purports to
take the defendant back in time to the point at which he was denied due process1.
Criminal proceeding
A retrospective competency trial is a criminal proceeding. This Court has the
power to determine what proceedings are criminal law matters. Armstrong v. State,
340 S.W.3d 759, 765 (Tex. Crim. App. 2011). This Court has exercised jurisdiction
over this mandamus proceeding and because it may do so only in “criminal law
matters,” this is necessarily a criminal law matter. Tex. Const. art. V, § 5.
A criminal proceeding remains criminal “even if it requires this Court to
examine civil laws in the process. Were it otherwise, this Court's power to decide
1
The point of time will, in fact, span many months because the law requires that a defendant be
competent for the entirety of the proceedings.
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criminal law matters would be seriously eroded or eliminated altogether by the
incidental presence of civil law matters.” Smith v. Flack, 728 S.W.2d 784, 788-89
(Tex. Crim. App. 1987).
This is not a federal habeas petition
In Ryan v. Gonzales, 133 S. Ct. 696 (2013) the U.S. Supreme Court held that
“Given the backward-looking, record based nature of most federal habeas
proceedings, counsel can generally provide effective representation” irrespective of
the petitioner’s competency. (emphasis added). Ryan at 704.
The Supreme Court’s language makes it clear the holding was not meant to
be universally applicable to all federal habeas cases.
It has no applicability to a retrospective competency trial. A retrospective
competency trial is not solely record based. This Court has held that evidence is not
limited to what was available at the time of the trial. In fact, this Court held that in
Watson, “post-dated evidence enhanced the accuracy of the assessment of
competency.” Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App. 1980).
This is not a state habeas petition
This Court held that there is no right to counsel in state habeas proceedings.
Ex parte Mines, 26 S.W.3d 910 (Tex. Crim. App. 2000). A retrospective
competency trial is not a collateral attack upon a conviction. It is a flawed substitute
for a trial that a defendant was erroneously denied.
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This Court has made this distinction clear. A defendant does not have a
right to counsel in state habeas proceedings, but does have a right to counsel in a
retrospective competency trial and in an appeal from that trial. Huff v. State, 807
S.W.2d 325, 326-7 (Tex. Crim. App. 1991).
Even in a traditional competency trial, there are many procedural protections
in place for a defendant. A competency jury must be different than the one that
determines culpability or a defendant’s due process rights are violated. Ex parte
Hagans, 558 S.W.2d 457, 463 (Tex. Crim. App. 1977). A competency trial jury is
not permitted to hear about the facts of the offense. Callaway v. State, 594 S.W.2d
440, 443 (Tex. Crim. App. 1980).A defendant has a right to a proper jury instruction
regarding competency. Ex parte Winfrey, 581 S.W.2d 698, 699 (Tex. Crim. App.
1979)
Because of the dangers of a retrospective competency trial, the court must be
even more vigilant in ensuring that the trial can be, and is, done in accordance with
due process.
It is not a motion for a new trial
When a new trial is granted, “the trial court has, on the defendant's motion,
set aside a finding or verdict of guilt.” Tex. R. App Rule 21.1. When a
retrospective competency trial is granted, nothing is set aside and a defendant is
not restored to his “position before the former trial.” Tex. R. App Rule 21.9.
9
Even if this Court were to consider a trial court’s discretion in granting a
trial in the interest of justice as analogous, Respondent has not abused his
discretion.
In Herndon, cited by realtor, this Court held that the trial court did not abuse
its discretion. State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007). This
Court has consistently recognized the broad discretion of the trial court. Although
there are some limitations, they are minimal and the purpose is only to preserve the
rule of law. For example, a court “cannot grant a new trial on mere sympathy, an
inarticulate hunch, or simply because he personally believes that the defendant is
innocent or ‘received a raw deal’.” State v. Herndon, 215 S.W.3d 901, 907 (Tex.
Crim. App. 2007). There must be a “valid legal claim.” State v. Thomas, 428
S.W.3d 99, 105 (Tex. Crim. App. 2014), reh'g denied (May 21, 2014).
THE TRIAL COURT HAS THE AUTHORITY TO REQUIRE A JURY TO
DETERMINE THE ISSUE OF PRESENT COMPETENCY
Seating a jury is not a ministerial act: granting leave was improvident
This Court has ordered the trial court to make a determination of feasibility
and, in accordance with the law, that determination is to take into account all
“pertinent considerations.” A court “must take the initiative to insure that all
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relevant evidence comes before it.” Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir.
1978).
In Watson, the petitioner argued that his retrospective competency trial was
improper because, without objection, “the trial court erred in failing to enter an order
to the effect that it was possible to conduct a retrospect competency hearing.” Ex
parte Watson at 906. That point was overruled.
He also argued that he was entitled to have a jury determine feasibility; this
Court held that he was not entitled. However, this Court did not prohibit a trial court
from empaneling a jury, or having a jury trial to only determine present competency.
In re Allen
In re Allen is a death penalty case in which the trial judge granted a motion
for a pre-trial determination of intellectual-disability. 3 months ago, this Court held
that “[t]he uncertainty surrounding intellectual-disability determinations prevents
labeling the judge's actions a violation of a ministerial duty.” In re Allen, 462 S.W.3d
47, 48 (Tex. Crim. App. 2015).
The law provides even less guidance for feasibility determinations and present
competency for retrospective competency trials. While this Court was able to cite
to multiple statutes and cases addressing the issue of pre-trial determinations of
intellectual-disability, present competency for a retrospective competency trial is
only referenced in Greene v. State, 264 S.W.3d 271, 272 (Tex. App.—San Antonio
2008).
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“If the law surrounding a court's action is unclear, mandamus relief may not
issue despite how unwise we think the action may have been. At times, it is an
exercise akin to judicial restraint.” In re Allen, 462 S.W.3d 47, 52-53 (Tex. Crim.
App. 2015).
Respondent’s act of empaneling a jury to make the decision regarding current
competency is not a violation of a ministerial duty and leave to file a petition for
mandamus was improvidently granted.
CONCLUSION
Every measure must be taken to ensure that a retrospective competency trial
only occurs when the challenges of conducting such a proceeding have been found
to be minimal enough not to threaten a defendant’s constitutional rights based on the
particular facts of the case. A defendant must be presently competent to preserve
his due process rights.
This Court has tasked the trial court with determining what “pertinent factors”
should be considered when determining feasibility and the trial court has correctly
determined that current competency is essential given the facts of this case. A jury
is the proper vehicle to determine a defendant’s current competency.
WHEREFORE, PREMISES CONSIDERED, the real party in interest
respectfully requests that this Court rescind its grant of leave to file petitions for
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writs of mandamus and/or prohibition and that this case be remanded to the trial
court to proceed with the feasibility determination based on the facts in this case.
Alternatively, the real party in interest requests that this Court hold that a
defendant must be presently competent in order for a retrospective competency trial
to occur and that the trial court has the authority to require a jury to determine the
issue of present competency.
Respectfully submitted,
/s/ Robert A. Morrow
____________________________
ROBERT A. MORROW
State Bar No. 14542600
r ow
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
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CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this
petition contains 2,393 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
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above Brief on Designated
Issues was delivered electronically on August 23, 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
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