in Re Tyrone Allen

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-82,265-01 & WR-82,265-02
IN RE TYRONE ALLEN, Relator
ON PETITIONS FOR WRITS OF MANDAMUS
TO THE FIFTH COURT OF APPEALS
CAUSE NOS. 05-14-01167-CV AND 05-14-001168-CV
DALLAS COUNTY
A LCALA, J., filed a dissenting opinion.
DISSENTING OPINION
Because the ministerial act that is at the center of the dispute in this case was
performed by a trial judge who is no longer on the bench and has no power to change the
offending order, the court of appeals’s decision to conditionally grant a writ of mandamus
against that trial judge has become moot during the pendency of this proceeding. The
appropriate action by this Court, which is effectively reviewing the propriety of the court of
appeals’s judgment conditionally granting mandamus relief against a former trial-court judge,
is to order the appellate court to vacate its prior judgment, hold the petition in abeyance, and
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abate the case to the trial court. The purpose of abatement under these circumstances is to
permit the current trial-court judge to determine whether he will adopt as his own the former
trial court’s order permitting a pretrial determination on intellectual disability. If the current
trial judge does adopt the former judge’s order, then the court of appeals may reinstate its
judgment by ordering that a writ of mandamus will issue against the current trial judge, and
the mandamus proceedings in this Court may move forward as they now have. But if the
current trial judge does not adopt the former judge’s order, then the court of appeals must
dismiss the petition as moot because the offending order would no longer exist. In short,
under the current procedural posture of this case, this case has become moot during the
pendency of this appeal. This Court accordingly lacks jurisdiction to issue a writ of
mandamus against the court of appeals because the subject of the proceedings in this
Court—the appellate court’s order conditionally granting a writ of mandamus against a
former trial-court judge—no longer constitutes a live controversy in light of the fact that the
former trial judge has no authority to rescind the offending order or to comply with the court
of appeals’s writ. Any resulting opinion by this Court in reviewing this matter, therefore, is
necessarily purely advisory.
Alternatively, assuming that this Court has jurisdiction to order the court of appeals
to rescind its judgment conditionally granting a writ of mandamus against a former judge
who lacks authority to comply with the writ, I am persuaded by the argument presented in
the dissenting opinion by Judge Newell that, under the judicial-ripeness doctrine, a trial court
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lacks jurisdiction to conduct a pretrial determination of intellectual disability in a capital-
murder case, and I join his opinion. Alternatively, further assuming that this Court properly
considers the petition on the merits, I would uphold the court of appeals’s judgment granting
the State’s original application for a writ of mandamus to preclude the trial court from
conducting a pretrial determination of intellectual disability. Mandamus relief is appropriate
when a trial court has no discretion, as here, but to abide by principles of law that have been
in effect for more than a decade: the jurisdictional doctrine of ripeness, Texas statutes, and
this Court’s precedent for addressing this type of claim.
I. Abatement to the Trial Court Is Required Under the Doctrine of Mootness
Given that the trial judge who granted relator’s motion for a pretrial intellectual-
disability hearing, Judge Larry Mitchell, is no longer the presiding judge of the 292 nd Judicial
District Court, this Court is obligated to order the court of appeals to vacate its prior
judgment and abate the case to the trial court so that the now-presiding judge may have the
opportunity to reconsider the previous trial judge’s original ruling in this case. Such an
approach is consistent with the applicable law, which indicates that abatement is generally
required under these circumstances for the purpose of allowing a successor judge to
reconsider a prior judge’s disputed ruling in order to ensure that an actual controversy
continues to exist in the case. Moreover, under the particular facts of this case, the current
proceedings have, at this stage, been rendered moot as a result of the original trial judge
being succeeded in office by another judge. Absent any further ruling by the current
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presiding judge that indicates the continuing existence of a live controversy, the resulting
opinion by this Court addressing the merits of this petition constitutes a prohibited advisory-
only opinion.
A. Applicable Law Governing Propriety of Abatement
The Texas Supreme Court has observed that mandamus “will not issue against a new
judge for what a former one did.” In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228
(Tex. 2008) (explaining that abatement is required “to allow the successor [judge] to
reconsider the order”); see also In re Schmitz, 285 S.W.3d 451, 453 (Tex. 2009) (observing
that, when judge whose ruling is at center of mandamus proceeding is succeeded by another,
“[n]ormally, this would require abatement for reconsideration”); State v. Olsen, 360 S.W.2d
402, 403 (1962) (per curiam) (observing that, because original trial judge who was party to
mandamus proceeding had died, proceeding was “moot,” and holding that “[a] writ of
mandamus will not lie against a successor judge in the absence of a refusal by him to grant
the relief Relator seeks”). This rule has its foundation in the Texas Rules of Appellate
Procedure, which provide that, when a public officer is a party to an original mandamus
proceeding in the Supreme Court or a court of appeals and he ceases to hold office before the
mandamus proceeding is finally disposed of, the court “must abate the proceeding to allow
the successor to reconsider the original party’s decision.” T EX. R. A PP. P. 7.2(a), (b). The
rationale underlying the rule is that, for mandamus relief to lie, a live controversy must exist
between the parties. “A case becomes moot if a controversy ceases to exist between the
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parties at any stage of the legal proceedings, including the appeal.” In re Kellogg Brown &
Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding); see also State Bar of Tex.
v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994) (orig. proceeding) (stating that for controversy
to be justiciable, there must be a real controversy between the parties that actually will be
resolved by the judicial relief sought); Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex.
1995) (Court will not issue mandamus relief if it would be useless or unavailing). Because
a pretrial ruling by a trial judge who is no longer in office may readily be rescinded and
superseded by a subsequent pretrial ruling from the successor judge, a dispute stemming from
such a ruling is essentially moot, and, as such, that type of ruling cannot form the basis of a
live controversy that is the subject of mandamus proceedings. See Kellogg, 166 S.W.3d at
737; see also In re Bonilla, 424 S.W.3d 528, 534 (Tex. Crim. App. 2014) (declining to grant
mandamus relief and dismissing petition because “particular dispute” had become “moot”);
State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1994) (where relief
sought has become moot, “there is nothing to mandamus, ergo mandamus does not lie”).
B. Abatement Is Required In Light of Mootness
Applying these principles to the present context, I observe that all of the foregoing
rationales for requiring abatement to a successor trial-court judge are relevant to this case.
Here, the controversy between the parties stems from the action of the original trial-court
judge in granting relator’s motion for a pretrial intellectual-disability hearing. The continuing
viability of that ruling is, at this point, questionable at best. The successor judge has had no
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opportunity to revisit the prior judge’s ruling because of the pendency of these mandamus
proceedings and the resulting stay of all proceedings in the trial court. At some point in the
future, proceedings in this case will necessarily resume in the trial court, at which point the
successor judge will have plenary power over the case and will be fully authorized to rescind
the prior judge’s orders granting relator’s request for a pretrial hearing. As this Court’s
majority opinion accurately observes, because this is a mandamus proceeding, this Court is
not actually deciding the propriety of the trial court’s order, and thus there would not be any
law of the case to prohibit the successor judge from reconsidering this pretrial ruling. Given
these circumstances, there exists no live controversy between the relevant parties because the
person who granted the challenged motion, the former trial judge, now lacks the authority
to either carry out or rescind his original ruling. In the absence of a live controversy between
the parties, mandamus relief is inappropriate. See Kellogg, 166 S.W.3d at 737.
With respect to the appellate-court proceedings in this matter, I observe that, like the
proceedings in the trial court, the result of those proceedings—the order conditionally
granting the State’s request for mandamus relief against the former judge—has similarly been
rendered moot as a result of Judge Mitchell’s departure from the bench. The appellate
court’s order in this case was directed at Judge Mitchell and was not directed more generally
at the trial court. See Schmitz, 285 S.W.3d at 454 (“Of course, the writ must be directed to
someone[.]”); O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (must be
proper request stating correct legal reason directed to judge against whom mandamus is
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sought). But, now that Judge Mitchell is no longer in a position of authority to comply with
the appellate court’s mandamus order, that order cannot be enforced against him. See Baylor,
280 S.W.3d at 228. And because the writ was not directed at the trial court, the appellate
court’s mandamus order cannot properly be enforced against the successor judge or anyone
else. See id. To the extent that we are presently reviewing the propriety of the court of
appeals’s conditional grant of mandamus relief, this Court’s majority opinion does not
explain how a live controversy continues to exist with respect to the appellate court’s order,
which, at this point, has become moot because it is directed at a person who is no longer in
a position to effectuate it. Moreover, the rules of appellate procedure and case law prohibit
enforcement of that order against the current presiding judge, absent an opportunity for him
to revisit the ruling. See id.; T EX. R. A PP. P. 7.2. And the rules and case law further provide
that a trial judge must be provided such an opportunity. See id. Because the court of
appeals’s mandamus order directed at the previous trial judge is clearly unenforceable against
the current presiding judge and, therefore, moot, any opinion by this Court reviewing the
propriety of that order is necessarily advisory in nature. See Pfeiffer v. State, 363 S.W.3d 594,
600 (Tex. Crim. App. 2012) (observing that this Court is “without authority” to render
advisory opinions).
It is suggested that Judge Mitchell’s succession by another judge is irrelevant to our
resolution of the proceedings in this Court because, at this stage, we are not directly
considering the trial judge’s ruling in granting relator’s motion for a pretrial hearing, but we
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are instead considering whether a writ of mandamus from this Court is an appropriate vehicle
to correct the court of appeals’s judgment in the proceedings below. I observe, however, that
regardless of the procedural posture in which this case comes to us, the requirement of a live
controversy between the parties persists, and a case may become moot if a controversy ceases
to exist “at any stage of the proceedings, including the appeal.” Kellogg, 166 S.W.3d at 737.
However desirable it may seem to correct what is viewed as an erroneous ruling by the court
of appeals, a writ of mandamus from this Court is an inappropriate vehicle to do so when the
underlying appellate-court order is no longer enforceable against any party to these
proceedings.
Along these same lines, it is suggested that abatement is not required because Rule
7.2 does not apply directly to proceedings in this Court. I, however, observe that, to the
extent that we are reviewing the propriety of the appellate court’s actions in conditionally
granting mandamus relief, we are bound to consider Rule 7.2 because it is applicable to
mandamus proceedings in the court of appeals. See T EX. R. A PP. P. 7.2(b); Baylor, 280
S.W.3d at 228. Furthermore, because the court of appeals issued its opinion on October 3,
2014, while Judge Mitchell was still on the bench,1 that court has never been afforded the
opportunity to decide whether abatement is required under that rule. Given the change in
circumstances that has arisen since the time its opinion was issued, the appellate court should
now be afforded the opportunity to comply with the rule.
1
See In re Watkins, Nos. 05-14-01167-CV, 05-14-01168-CV, 2014 WL 5903105 (Tex.
App.—Dallas Oct. 3, 2014).
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Now that Judge Mitchell had been superseded in office, the appropriate and required
course of action is abatement in order to give the current presiding judge an opportunity to
reconsider the previous ruling granting relator’s request for a pretrial intellectual-disability
hearing, thereby ensuring the continued existence of a live controversy in this case. See T EX.
R. A PP. P. 7.2(b); Baylor, 280 S.W.3d at 228. The court of appeals’s order conditionally
granting mandamus relief to the State in the proceedings below is now moot because it is
directed at the former judge who is no longer in a position to take any action on that order,
and that order may not properly be enforced against the successor judge. See id. Because
the Court determines that, notwithstanding these circumstances that eliminate the existence
of a live controversy in this case, mandamus relief is nonetheless warranted, I disagree with
the Court’s decision to conditionally grant relator’s requested relief.
II. Assuming that Court Properly Considers Relator’s Petition, His Requested
Relief Should Be Denied
Even were I to agree that this Court properly addresses the merits of relator’s present
request for mandamus relief, I would nevertheless disagree with the Court’s decision to grant
that relief. As indicated above, I agree with the position taken by Judge Newell that a trial
court lacks jurisdiction to conduct a pretrial hearing on intellectual disability because that
issue is not ripe until the punishment phase of trial.
Further assuming that this Court has jurisdiction to address this moot order pertaining
to an unripe matter, I conclude that, on the merits, mandamus relief is unwarranted. Before
addressing the merits, it is important to understand the way that the statutory scheme set forth
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by the Legislature has worked, at least until this Court’s decision today. Through numerous
provisions, the Code describes a capital-murder proceeding as follows: The State decides to
seek the death penalty against a person indicted for capital murder; individual voir dire is
conducted; the State presents evidence in a guilt stage of trial; a jury decides whether the
evidence proves capital murder; if the jury has convicted a defendant of capital murder, it
answers certain special issues in a sentencing phase of trial; the trial court sentences a
defendant either to life in prison or to the death penalty depending on the jury’s answers to
the special issues; and, on appeal, a defendant either files a notice of appeal to the court of
appeals challenging his life sentence or there is an automatic appeal of his death sentence to
this Court. Up until today, a defendant’s claim of intellectual disability has been addressed
either in the sentencing phase of his capital-murder trial or in a post-conviction hearing.
In contrast to this procedural scheme that has been followed in Texas for over a
decade, here, at a pretrial stage, the trial court would conduct a hearing at which relator is
given the opportunity to prove that he is intellectually disabled before he is ever tried or
convicted of capital murder. At this pretrial stage, the State would have to provide evidence
establishing a defendant’s guilt of the offense in order for the fact finder to be able to assess
how that evidence may weigh into assessing whether he is intellectually disabled. This
pretrial hearing would essentially become applicant’s first trial on guilt and would require
the State to marshal all of its evidence to show his role in the commission of that offense.
If a defendant is determined to be intellectually disabled, a trial court may decide to deprive
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the State of the opportunity to seek the death penalty based on the court’s determination that
the defendant would be constitutionally ineligible for it. Alternatively, even if he is found
to be intellectually disabled at the pretrial hearing, the State would still have the right to
individual voir dire and to seek the death penalty, at least according to the provisions in the
Code of Criminal Procedure that are discussed below. After the pretrial hearing, therefore,
applicant’s regular guilt trial would occur. Assuming he is found guilty of capital murder,
applicant would again be permitted to present any evidence of his intellectual disability, as
that would be relevant to the mitigation special issue. Assuming that he is sentenced to
death, applicant likely would have a third opportunity to present evidence of his intellectual
disability in an application for a writ of habeas corpus either through a claim asserting
ineffective assistance of counsel or through any new evidence on that subject. The end result
of all of this will be that the guilt evidence will be presented twice, at the pretrial hearing and
at the regular trial, and the defendant will have at least three opportunities to prove his
intellectual-disability claim: at the pretrial hearing, regular trial, and in post-conviction
proceedings.
There is only one rational decision under unequivocal, well-settled, and clearly
controlling legal principles: This bizarre procedural scheme, fancifully created by this single
trial court judge, is contrary to over a decade of jurisdictional principles, legislative statutes,
and this Court’s precedent. This Court should not abdicate its responsibility to ensure that
the law in Texas is not applied by a single trial judge in such an extraordinary and absurd
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manner. See, e.g., In re State ex. rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013).
Because the State has shown that under well-established and long-standing law it is entitled
to mandamus relief against this aberrant order, this Court has no discretion but to uphold the
appellate court’s order conditionally granting the State the relief that it seeks, as explained
more fully in my two points below.
A. When Viewed in Their Totality, Texas Statutes Applicable to Capital-
Murder Trials Preclude a Pretrial Determination
In this context, it is unnecessary to lament the Legislature’s failure to specifically pass
statutes that would address how intellectual-disability claims should be handled because the
Legislature has enacted general procedures for the litigation of a capital-murder case that,
when viewed in their totality, definitively control the process applicable to such a proceeding.
A pretrial determination of intellectual disability is outside the realm of what the Legislature
has described with respect to the procedures applicable in a capital-murder trial. The absence
of a specific rule disallowing a pretrial determination as to intellectual disability, therefore,
is immaterial.
Through numerous statutes, the Legislature has enacted a general procedural scheme
applicable to all capital-murder cases based only on the State’s representation that it is
seeking the death penalty. See T EX. C ODE C RIM. P ROC. art. 35.15(a) (“In capital cases in
which the State seeks the death penalty both the State and defendant shall be entitled to
fifteen peremptory challenges.”); Id. art. 35.17, § 2 (“In a capital felony case in which the
State seeks the death penalty, the court shall propound to the entire panel of prospective
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jurors questions [and] . . . . examine each juror on voir dire individually and apart from the
entire panel”); Id. art. 37.071, § 2(a)(1) (“If a defendant is tried for a capital offense in which
the state seeks the death penalty, on a finding that the defendant is guilty of a capital offense,
the court shall conduct a separate sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment without parole.”); Id. art. 37.071, § 1 (“If a
defendant is found guilty in a capital felony case in which the state does not seek the death
penalty, the judge shall sentence the defendant” to life imprisonment without parole.); see
also id. art. 37.0711 §§ 2, 3 (emphasis added in all the parentheticals). These mandatory
provisions are contingent only on the State’s decision to seek the death penalty. Based on
the general scheme set forth by the Legislature establishing rules that become applicable to
a capital murder case only upon the State’s decision to seek the death penalty, it is clear that
the trial court has no discretionary authority to create an additional barrier to the State’s right
to seek the death penalty in the form of a pretrial determination of intellectual disability.
Perhaps, in this case, even if the trial court were to decide in a pretrial hearing that
relator is intellectually disabled, the trial court would nonetheless permit this trial to proceed
as it normally would in a capital-murder case in which the State seeks the death penalty, with,
for example, individual voir dire and special issues in the sentencing phase. Even if that
were to occur, I would hold, based on the entire statutory scheme set forth by the Legislature
that is mandatory and contingent only upon the State seeking the death penalty, that a trial
court has no statutory authority to additionally require the State to successfully defend against
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a defendant’s pretrial claim of intellectual disability as a prerequisite to the normal
progression of a capital-murder trial.
B. Permitting a Pretrial Determination on Intellectual Disability is Clearly
Unauthorized by this Court’s Jurisprudence
This Court’s jurisprudence in Ex parte Briseno has set forth the standard for
determining whether a particular defendant is ineligible for the death penalty due to
intellectual disability, but that standard contemplates that a defendant has already been found
guilty of capital murder. See Ex parte Briseno, 135 S.W.3d 1, 8-9 (Tex. Crim. App. 2004)
(setting criteria for determination of intellectual disability); see also Ex parte Sosa, 364
S.W.3d 889, 890 (Tex. Crim. App. 2012). The Briseno standard operates under the
assumption that the defendant is in fact guilty of the capital murder for which he has been
indicted. Id. One of the Briseno factors specifically asks, “Putting aside any heinousness or
gruesomeness surrounding the capital offense, did the commission of that offense require
forethought, planning, and complex execution of purpose?” Id. At a pretrial stage, a
defendant is presumed innocent and no facts of the commission of the offense have been
proven. See Coffin v. United States, 156 U.S. 432, 453 (1895) (“The principle that there is
a presumption of innocence in favor of the accused is the undoubted law, axiomatic and
elementary, and its enforcement lies at the foundation of the administration of our criminal
law.”). The constitutional principle that a defendant be presumed innocent until proven
guilty stands in stark contrast to this Court’s jurisprudence for deciding an intellectual-
disability claim that requires consideration of a defendant’s actions while committing the
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capital murder for which he has been found guilty. I conclude that a trial court lacks the
discretion to conduct a pretrial hearing on intellectual disability in contravention of federal
constitutional law or this Court’s jurisprudence.
III. Conclusion
Because the trial judge who granted relator’s motion for a pretrial intellectual-
disability determination is no longer presiding over relator’s capital-murder trial, and because
the appellate court’s order conditionally granting mandamus relief was directed against that
judge, I conclude that abatement is required in order to afford the now-presiding judge an
opportunity to revisit the underlying ruling in this case. In the absence of abatement,
mandamus will not lie against the successor judge, and any ruling by this Court evaluating
the appellate court’s conditional grant of mandamus relief, which has now been rendered
moot, will necessarily be advisory.
Even accepting the correctness of the majority opinion’s decision to address the merits
of relator’s petition, I observe that the argument, “But you didn’t say that I couldn’t do this”
is not a persuasive argument from my kids when they act in contravention to one of my
general rules, nor is it here, where it is abundantly clear that federal, statutory, and state rules
that have been generally set forth apply to cover this situation. Because, as Judge Newell has
explained, an intellectual-disability claim is not yet ripe at a pretrial stage, and because the
legislative statutes and this Court have definitively set forth a procedural scheme that requires
that intellectual-disability claims be litigated during the sentencing phase or in the post-
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conviction phase of a capital-murder trial, I respectfully dissent.
Filed: May 13, 2015
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