                                                                                 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




                                        2
                                               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
Martin 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




                                                                         3
               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.




                                           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 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?




                                           5
                                    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.

                                               7
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.


                                           8
        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




                                          10
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).



                                          11
      “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




                                         12
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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