                                   Appendix Index


Exhibit                                      Document
          Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013), reh'g denied
  A
          (Apr. 2, 2014)

  B       May 30, 2014 Reporter’s Record on Determination of Retrospective Competency


  C       September 25, 2014 Order on Feasibility of Retrospective Competency Trial

          April 28, 2014 State’s Bench Memorandum on the Feasibility of a Retroactive
  D
          Competency Hearing
          January 16, 2015 Reporter’s Record on Determination of Retrospective
  E
          Competency
          January 16, 2015 Defendant’s Motion to Address Mr. Turner’s Current
  F
          Incompetency and Brief in Support
          July 7, 2014 State’s Motion for Enforcement of the Trial Court’s Limited
  G
          Jurisdiction on Remand

  H       In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013)
Exhibit
  A
Turner v. State, --- S.W.3d ---- (2013)


                                                                       The constitutional standard for competency to
                                                                       stand trial asks whether the defendant has a
                     2013 WL 5808250
                                                                       sufficient present ability to consult with his
       Only the Westlaw citation is currently available.
                                                                       lawyer with a reasonable degree of rational
      NOTICE: THIS OPINION HAS NOT BEEN                                understanding and whether he has a rational as
      RELEASED FOR PUBLICATION IN THE                                  well as factual understanding of the proceedings
 PERMANENT LAW REPORTS. UNTIL RELEASED,                                against him.
 IT IS SUBJECT TO REVISION OR WITHDRAWAL.
                                                                       5 Cases that cite this headnote
             Court of Criminal Appeals of Texas.
                                                                 [3]   Mental Health
              Albert James TURNER, Appellant
                                                                          Mental Disorder at Time of Trial
                             v.
                                                                       The legislative criteria for competency to stand
                     The STATE of Texas.
                                                                       trial contemplate a defendant who is at least
              No. AP–76580.        |   Oct. 30, 2013.                  minimally able to interact with his trial counsel in
                                                                       a reasonable and rational way, even if they do not
Synopsis                                                               necessarily agree, in formulating decisions how
Background: Defendant was convicted in the District Court,             most effectively to pursue his defense.
Fort Bend County, Brady Elliott, J., of the intentional murder
of his wife and mother-in-law during the same criminal                 1 Cases that cite this headnote
transaction, which was a capital offense. Defendant appealed.
                                                                 [4]   Mental Health
                                                                          Mental Disorder at Time of Trial
[Holding:] The Court of Criminal Appeals, Price, J., held that         In the context of competency to stand trial,
formal competency trial became warranted approximately                 there is particular cause for concern when a
one month after initial evaluations by psychologist and                defendant's mental impairment directly touches
psychiatrist finding defendant competent to stand trial.               upon certain fundamental decisions that the
                                                                       criminal justice system reserves for him to make
                                                                       personally, albeit after engaging meaningfully
Abated and remanded.                                                   with counsel, such as whether to testify in his
                                                                       own defense.
Keller, P.J., dissented and filed opinion in which Meyers,
Keasler, And Hervey, JJ., joined.                                      Cases that cite this headnote


                                                                 [5]   Mental Health
 West Headnotes (12)                                                      Mental Disorder at Time of Trial
                                                                       Precisely because the defendant retains ultimate
                                                                       authority over fundamental decisions that the
 [1]       Constitutional Law
                                                                       criminal justice system reserves for him to make
               Incompetency or Mental Illness
                                                                       personally, such as whether to testify in his
           A criminal defendant who is incompetent may                 own defense, it is critical, in deciding whether
           not be put to trial without violating due process.          defendant is competent to stand trial, that he be
           U.S.C.A. Const.Amend. 14.                                   able to consult with counsel with a reasonable
                                                                       degree of rational understanding about them.
           1 Cases that cite this headnote
                                                                       1 Cases that cite this headnote
 [2]       Mental Health
              Mental Disorder at Time of Trial                   [6]   Mental Health


                 © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Turner v. State, --- S.W.3d ---- (2013)


              Mental Disorder at Time of Trial                      Const.Amend. 14; Vernon's Ann.Texas C.C.P.
        A defendant's mental illness plus his failure to            art. 46B.004.
        communicate with counsel will invariably or
                                                                    2 Cases that cite this headnote
        necessarily add up to a finding of incompetence
        to stand trial.
                                                             [10]   Criminal Law
        Cases that cite this headnote                                   Doubt as to Competency; Reasonable
                                                                    Cause or Grounds
 [7]    Mental Health                                               Trial court was not required to conduct a formal
           Mental Disorder at Time of Trial                         competency trial following initial evaluations
        Neither the fact that a defendant is mentally ill           by psychologist and psychiatrist in prosecution
        nor that he obstinately refuses to cooperate with           for intentional murder of defendant's wife
        his trial counsel by itself mean he is incompetent          and mother-in-law during the same criminal
        to stand trial.                                             transaction, where psychologist and psychiatrist
                                                                    deemed him to be competent, and trial counsel
        Cases that cite this headnote                               made no request at the time for a formal
                                                                    competency trial. Vernon's Ann.Texas C.C.P.
                                                                    art. 46B.004.
 [8]    Criminal Law
            Doubt as to Competency; Reasonable                      1 Cases that cite this headnote
        Cause or Grounds
        In determining whether some evidence from any
                                                             [11]   Criminal Law
        source of defendant's incompetency to stand trial
                                                                        Successive Proceedings in General
        had arisen by the time of informal competency
        inquiry, trial court must consider only that                Approximately one month after initial
        evidence tending to show incompetency, putting              evaluations by psychologist and psychiatrist
        aside all competing indications of competency,              finding defendant competent to stand trial, there
        to find whether there is some evidence, a quantity          was at least some evidence that supported
        more than none or a scintilla, that rationally may          a rational finding that defendant lacked the
        lead to a conclusion of incompetency. Vernon's              capacity to engage with his trial counsel
        Ann.Texas C.C.P. art. 46B.004(c).                           rationally or to make rational choices with
                                                                    respect to his legal strategies and options and,
        3 Cases that cite this headnote                             thus, formal competency trial was warranted in
                                                                    prosecution for intentional murder of defendant's
                                                                    wife and mother-in-law during the same criminal
 [9]    Constitutional Law
                                                                    transaction, which was a capital offense, where
            Necessity; Right to Hearing
                                                                    defendant threatened his attorney with physical
        Criminal Law
                                                                    violence over disagreement with strategy to
            Successive Proceedings in General
                                                                    depose defendant's children, defendant was upset
        Should the formal competency trial result in                that trial counsel was not pursuing defendant's
        a finding of competency, the trial court is                 apparently delusional and clearly irrelevant
        not obliged to revisit the issue later, absent a            defense that the mayor had sired his youngest
        material change of circumstances suggesting that            child, and defendant's paranoia had progressed to
        the defendant's mental status has deteriorated;             the point that he believed that his attorneys were
        however, especially when there has been a                   openly conspiring with the prosecutors to secure
        suggestion of incompetency, but no formal                   his conviction. Vernon's Ann.Texas C.C.P. art.
        adjudication of the issue, due process requires             46B.004.
        the trial court to remain ever vigilant for
        changes in circumstances that would make                    Cases that cite this headnote
        a formal adjudication appropriate. U.S.C.A.


               © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Turner v. State, --- S.W.3d ---- (2013)



                                                               offense. 1 The jury answered the statutory special issues in
 [12]   Criminal Law
                                                               such a way that the trial court was required to assess the death
            Conduct of Trial or Hearing
                                                               penalty. 2 Direct appeal is automatic in this Court. 3
        To the extent that the defendant's disastrous
        decision to testify was the product of a conflict
                                                               The appellant does not challenge the sufficiency of the
        with trial counsel that derived from a paranoid
                                                               evidence to support either his conviction or death sentence. In
        pathology, it was constitutionally intolerable in
                                                               fourteen of his twenty-four points of error, he claims that he
        prosecution for intentional murder of his wife
                                                               was incompetent to stand trial, or that the trial court should
        and mother-in-law during the same criminal
                                                               at least have paused the proceedings at various stages of trial
        transaction, which was a capital offense, and,
                                                               to conduct a formal competency hearing, as his trial counsel
        thus, a formal competency trial that could
        have ruled out that substantial possibility before     repeatedly requested. 4 In order to address these various
        proceeding to trial on the indictment was              points of error adequately, we must undertake a detailed
        warranted, where defendant took the witness            recitation of certain events transpiring before and during trial.
        stand against the advice of counsel, he proceeded
        to testify at odds with the defensive posture of
        his lawyers based upon a wholesale denial of                      COMPETENCY TO STAND TRIAL
        responsibility that was worse than implausible,
        which opened the door for the prosecutors              The evidence at trial showed that, just after midnight on
        to expose the irrationality of his account on          December 27, 2009, the appellant entered the home of his in-
        cross-examination and then to highlight, at both       laws and killed his wife, Keitha Turner, and his mother-in-
        the guilt and punishment phases of trial, that         law, Betty Jo Frank, cutting their throats while his three young
        his willful refusal to acknowledge blame was           children were present in the house. 5 Although we find no
        nothing but a clear signal of his enduring             indictment in the clerk's record, the docket sheet indicates that
        threat to society. Vernon's Ann.Texas C.C.P. art.      on March 3, 2010, Ralph Gonzalez was appointed to represent
        46B.004.                                               the appellant, that a grand jury indicted the appellant for
                                                               capital murder on April 5, 2010, and that, on May 17, 2010,
        Cases that cite this headnote
                                                               Gonzalez filed a motion to have the appellant evaluated for his
                                                               competency to stand trial. The trial court immediately granted
                                                               that motion, and the appellant was promptly evaluated by
                                                               two forensic mental-health experts: psychologist Dr. Karen
Attorneys and Law Firms                                        Gollaher and psychiatrist Dr. David Axelrad.
Gail Kikawa McConnell, Assistant District Attorney,
Richmond, TX, for Appellant.
                                                                                        I. The Facts
Robert A. Morrow, Attorney at Law, The Woodlands, TX,
Lisa C. McMinn, State's Attorney, Austin, for the State.
                                                                           A. The Initial Competency Reports
Opinion
                                                               Dr. Gollaher conducted the first evaluation on May 18th and
                                                               19th, 2010. In her report, Gollaher notes that the appellant
                         OPINION                               “reported the belief that his wife had been having an affair
                                                               for many years with the Mayor of Kendleton, Texas [,]” but
PRICE, J., delivered the opinion of the Court in which
                                                               that “she had repeatedly denied any extramarital relationship,
WOMACK, JOHNSON, COCHRAN, and ALCALA, JJ.,
                                                               calling him paranoid.” Gollaher also noted that the appellant's
joined.
                                                               recent jail records “appear to refer to possible delusional
 *1 The appellant was convicted of the intentional murder of   thinking[.]” While the appellant denied any such delusional
more than one person during the same criminal transaction,     thinking during the evaluation, Gollaher nevertheless noted
namely, his wife and his mother-in-law, which is a capital     “several statements” that he made to her “that raise[d] the



               © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Turner v. State, --- S.W.3d ---- (2013)


possibility of paranoid thinking.” Moreover, “he reported the      had not yet seen the experts' competency reports, he had
jail psychiatrist prescribed him Risperdal but he has not taken    been told that Gollaher deemed the appellant competent to
his medications because he does not believe he needs it.” 6        stand trial and that Axelrad had found him to be “perfectly
Gollaher did not diagnose the appellant as suffering from any      fit.” Even so, Gonzalez informed the trial court that “[w]e're
particular thought disorder. She did not believe his possible      having difficulty with [the appellant] accepting a lot of
paranoid thoughts would “undermine his ability to participate      things that happened. And one of the biggest things is his
in the court procedures.” She also concluded that the appellant    family, his children. There is a little bit of disconnect right
was “capable of communicating events in an understandable          now.” Nevertheless, the appellant's counsel did not request
manner and can report his state of mind.” It was her ultimate      any further proceedings at this time with respect to his
professional opinion that the appellant was, as of that time,      competency to stand trial.
competent to stand trial.
                                                                   More than four months later, on November 9, 2010, counsel
 *2 Dr. Axelrad evaluated the appellant a month later,             for the appellant filed a notice of intent to take the depositions
on June 14, 2010, also ultimately concluding that he was           of two of the appellant's children. On November 22, 2010, in
                                                                   open court, at the beginning of a hearing on pretrial motions,
competent to stand trial. In his report, 7 however, Axelrad
                                                                   the appellant personally informed the trial court that he had
acknowledged that the appellant “is an individual who may
                                                                   filed a grievance against his lawyers and wanted a new
have a mental illness and the diagnosis may be a paranoid
                                                                   “defense team” appointed. He complained that he did not
disorder.” Although he did not note any impairment in the
                                                                   wish to have his children deposed and that his lawyers had
appellant's thought process or content, he nevertheless found
                                                                   not explained to him the purpose behind the various pretrial
the appellant to be “mildly impaired” in his abilities: 1) to
                                                                   motions on file. Defense counsel denied that they had failed
disclose to counsel pertinent facts, events, and states of mind;
                                                                   to explain the motions and asserted that they needed to depose
2) to engage in a reasoned choice of legal strategies and
                                                                   the children to obtain discovery and for other undisclosed
options; and 3) to engage with counsel. From the recent
                                                                   purposes in the service of their client's best interests. The trial
jail records, Axelrad noted that the attending psychiatrist
                                                                   court denied the appellant's request for new lawyers.
had found the appellant to be “exhibiting some paranoid
ideation, and he does appear to be delusional.” The appellant
                                                                   *3 Another ex parte conference occurred in chambers on
also exhibited “some paranoid ideas” and “mild paranoid
functioning” during Axelrad's evaluation. The appellant            December 10, 2010, 8 the same day that the deposition of the
reported to Axelrad that he had “lost confidence in his            appellant's children was originally scheduled. The appellant's
attorney, and [he did] appear to have significant problems         counsel revealed that the relationship between the appellant
in his relationship with his current attorney, Mr. Gonzalez.”      and Gonzalez had deteriorated to the point that the appellant
The appellant would not discuss the circumstances of the           had physically threatened Gonzalez. Gonzalez related:
offense with Axelrad; consequently, Axelrad was “unable
                                                                                In my thirty years, I've been threatened
to address, at this time, as to whether [the appellant] had a
                                                                                on several occasions but never as
paranoid disorder. In the event he has a paranoid disorder,
                                                                                adamantly and never [as] menacingly
this may be contributing to the problems he is experiencing
                                                                                as this guy. I believe that no matter
with his attorney.” With this caveat, Axelrad concluded that
                                                                                what I tell him, if I could tell him
the appellant was nonetheless competent to stand trial—and
                                                                                that he would be getting out of jail
even that he was competent “to enter into plea negotiations
                                                                                tomorrow and nothing would happen
concerning his alleged offense in the event that he and his
                                                                                to him, he would not believe me. There
attorney can develop an effective working relationship.”
                                                                                is nothing that I can do to convince that
                                                                                man that I have anything of benefit to
                                                                                do for him or that I can do for him.
                  B. Pretrial Proceedings
                                                                   Because the attorney/client relationship had become so
The first pretrial hearing on record was an ex parte conference    “untenable,” Gonzalez filed a motion to withdraw. That same
that took place in chambers on June 23, 2010. By this              day, in open court, the appellant personally reiterated that
time the trial court had appointed a second attorney, Pat          he was “opposed to the depositions” of his children and did
McCann. Gonzalez reported to the trial court that, while he        not “want Mr. Gonzalez on my case.” The trial court granted


                © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                                4
Turner v. State, --- S.W.3d ---- (2013)


Gonzalez's motion to withdraw. Because Gonzalez had been             rest of the Defense team are working with the State to ensure
the member of the defense team who had prepared to conduct           his conviction, we may need to revisit competency at some
the depositions, they were rescheduled. On December 14,              point with you.” The trial court responded that “we can do a
2010, the trial court appointed Tyrone Moncriffe to replace          competency exam while we are doing the voir dire.”
Gonzalez and, on January 5, 2011, the trial court granted the
defense a trial continuance until April 18, 2011, with final
pretrial motions to be heard on April 11, 2011, in order to give
                                                                                               C. Voir Dire
Moncriffe sufficient time to familiarize himself with the case.
                                                                     Voir dire was set to commence the next week, on April
The April 11th hearing began with a renewal of the appellant's       18, 2011. In the interim, McCann filed a “Motion for a
efforts to replace his trial counsel. The trial court had received   Contested Competency Hearing.” Attached to this motion
“letters” by fax from a woman purporting to be the appellant's       were an affidavit from Moncriffe, dated April 7, 2011,
sister that asked the trial court to “fire[ ]” the appellant's       and a competency evaluation from a neuropsychologist,
trial counsel. Because the faxed copies of the letters did           Dr. Shawanda Williams–Anderson, dated April 12, 2011.
not bear his signature, however, the appellant refused to            Moncriffe explained that it was part of the defensive strategy
“endorse” them as his. The trial court therefore declined            to depose the appellant's children and then agree for the State
to “take them up[.]” McCann told the trial court that “we            to use the deposition testimony in lieu of live testimony at
are doing everything possible to prepare for this trial; but         trial, since, in their estimation, “the impact of [the appellant's]
[the appellant] has not agreed to speak with us on many              children describing their mother and grandmother's horrible
occasions[.]”                                                        [deaths] was much more damaging live than by deposition.”
                                                                     Accordingly, McCann had conducted the depositions on
Later during the same pretrial hearing, the trial court returned     April 1, 2011, while Moncriffe and the appellant watched by
to the issue of the appellant's displeasure with his trial           video link from an adjoining room. The appellant watched
counsel, directly asking the appellant whether he wished to          with “a bewildered look on his face.” Afterwards, he yelled
represent himself. The appellant unequivocally responded,            at his lawyers, accusing them of making his children testify
“No.” He complained, however, that trial counsel “have not           against him, in conspiracy with the District Attorney. “He
shown me any evidence.” He acknowledged that they had                cannot assist his defense team,” Moncriffe concluded, “nor
played for him a recording of the 911 call in which his              does he have a rational understanding of the magnitude of
daughter had reported the murders, but he complained that            these proceedings. He seems to have one train of thought
he had not been able to hear it. McCann answered that the            and he disregards all other rational thoughts completely.”
appellant had been provided everything except for the actual         Dr. Williams–Anderson evaluated the appellant on April 12,
physical evidence, including offense and autopsy reports,            2011. She concluded that, “[b]ecause of the seriousness of
and that, not only had the appellant been able to hear the           [the appellant's] charges, his unwillingness to participate in
911 recording, it had made him weep. McCann agreed to                his defense, and his extreme distrust of every member of his
make all the evidence available for the appellant again. The         team, his competency to stand trial is questionable.”
appellant then complained that his lawyers had not contacted
the Mayor of Kendleton or conducted any paternity testing            At a hearing on the motion for a formal competency hearing,
to determine whether the Mayor was the real father of the            which convened on April 18th, the first day of voir dire,
appellant's youngest child. McCann explained that they had in        McCann argued that the appellant's “paranoia has grown
fact interviewed the Mayor but that the result of any paternity      to the level of delusions[.]” “It's become an issue to the
testing was, in any event, “sadly not legally relevant.” The         point where [the appellant] actively appears to believe that
trial court informed the appellant that it would not remove          we are working against his own interests, and the delusion
trial counsel from the case and suggested that he “start             seems complete and full-blown.” McCann explained that the
cooperating with them.”                                              appellant's

 *4 Later that same day, another ex parte conference took                         attitude has gotten worse in the last
place in chambers. McCann informed the trial court that                           several weeks, that we have spent
“we're going to attempt to go speak with him; but at some                         numerous hours with [him] over the
point, based upon his clear paranoia that somehow I and the                       last several days since the hearing on



                © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
Turner v. State, --- S.W.3d ---- (2013)


             the 11th; and we have all come to the                 status has changed since the last time a competency hearing
             conclusion that at this point he is—                  occurred.” 10 Afterwards, “I'll do an initial evaluation about
             although he interacts with us on this                 whether [the appellant's] status has changed.” Accordingly,
             plane of reality, he frankly is thinking              the trial court ordered Dr. Connie Almeida, a licensed
             and living in another one that does                   clinical psychologist and Director of the Fort Bend County
             not appear to comport with either the                 Behavioral Health Services, to evaluate the appellant, with
             evidence we've shown him, our views                   an emphasis on whether he was “able to rationally assist his
             of the case, or anything that we can                  lawyers in the defense of his case.”
             determine as a group as rational.
                                                                   Dr. Almeida filed a report on May 19, 2011, and appeared
 *5 Responding to the prosecutor's argument that simple
                                                                   at a hearing the next day, on May 20th. She testified that the
disagreement between a lawyer and his client does not raise
                                                                   appellant would not cooperate with her several attempts to
an issue of competency, and the trial court's request that
                                                                   evaluate him, and that the best she could do was to report her
McCann “focus on the fact that we've already conducted the
                                                                   impressions from a half-hour conversation she had managed
competency evaluation in this case[,]” McCann asserted:
                                                                   to have with him on May 17, 2011, during which “[h]e did
             I have defended serial killers and                    express disagreement with some of the strategies and ‘tactics'
             people who have killed their whole                    of his defense team.” As of that date, the appellant was not
             families, and this case is challenging                taking any psychotropic medications, nor did the behavioral
             even my ability to ... see how this                   health staff at the jail deem such medications presently
             could not be originating from anything                warranted. From all this, Almeida was unable to draw any
             but mental illness. * * * It has                      conclusions about the appellant's competency to stand trial.
             now gotten to a place ... where [the                  But she believed there to be “no significant changes in his
             appellant's] version of the reality of                functioning” since he was initially evaluated for competency
             the facts that he deals with day-to-day,              by Drs. Gollaher and Axelrad the previous summer. She could
             whatever evidence is shown, whatever                  not say “definitively” that the appellant was not paranoid.
             discussions we have, comes from a
             place of such deep rooted paranoia that                *6 On cross-examination by the prosecutor, Almeida opined
             I can no longer believe it is simply a                that, “based on my limited interaction with him, I would say
             difficult person that I'm dealing with.               that he would have a rational and factual understanding of
                                                                   the proceedings against him.” 11 She also acknowledged an
Given the competency evaluations that had already been             observation she had made in her written report that “there
conducted by Drs. Gollaher and Axelrad, the trial court            is no current evidence to substantiate a delusional or other
found that what Dr. Williams–Anderson characterized as             psychiatric disorder.” Nor was she aware of “any behaviors
the appellant's simple “unwillingness to participate in            that warrant a psychiatric intervention” since the appellant
his defense” provided insufficient grounds to conduct a            had been jailed. She nevertheless stood by her position that
competency hearing, and it therefore denied the motion.            she was unable to reach a determination of her own whether
                                                                   the appellant had a present ability to assist his counsel, as
McCann broached the subject of competency again about a            the trial court had requested. The best she could say was
week into voir dire when, on April 26, 2011, he complained         that she perceived “no significant changes in [his] emotional
that, “although I have attempted to engage with my client in       or cognitive functioning since” the earlier evaluations that
regards to his opinions, for whatever reason, it appears to have   would adversely impact his competency to stand trial.
been shut down.” He urged the trial court take up his motion
for a competency hearing again. The trial court advised him        After hearing argument from the parties, the trial court
to file a new motion with accompanying affidavit. McCann           denied the motion for a formal competency hearing. While
apparently did, 9 because a renewed hearing was held on            acknowledging that Drs. Gollaher and Axelrad had made
April 27, 2011. While persisting in its refusal to order a         “notation of paranoia” in their initial competency reports,
formal competency hearing, the trial court at this time decided    the trial court observed that they had not found the
“to direct the Court's behavioral mental health director to        appellant's paranoia to be “sufficient to meet the statutory
do an evaluation to determine whether [the appellant's]            guidelines” for incompetency. The trial court opined that


                © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                           6
Turner v. State, --- S.W.3d ---- (2013)


the appellant's evidence of incompetence, measured against         narrow his inquiry, McCann asked the appellant whether he
those “statutory guidelines,” “does not call for secondary         had something to tell the jury about the night of the murders.
competency evaluations unless there's a clear change in [the       After some additional wrangling, the appellant was allowed
appellant's] whole aspect that raises a clear concern.” The        to describe in narrative fashion what he had done during
only such change that the trial court could see was the            the day of December 26, 2009, before the murders. As his
appellant's “failure to cooperate with [counsel] and that's his    narrative approached the time of the murders, however, the
choice to make [.]” Even so, the trial court believed this had     trial court directed McCann to ask another question. At a
been enough to justify appointing Almeida, in an abundance         bench conference, McCann explained that he was ethically
of caution, “to explore this area to see if there was such         constrained from asking more specific questions, and the
a change that it would require a full competency hearing.”         prosecutor speculated that McCann “can't do it because he
Although Almeida was unable to reach a conclusion whether          knows it's a lie.” 12 McCann was then allowed to ask the
the appellant's failure to cooperate with his counsel rendered     appellant whether he had “something else [he] wanted to
him incompetent, the trial court reasoned, her inability was       add[.]” At that point, the appellant vehemently denied having
itself the product of the appellant's choice not to talk to her    ever “put [his] hands on [his] wife[,]” and claimed that his
about his case. “That is a reasoned decision on his part. Does     daughter had said as much during a portion of her deposition
it reach to the level of incompetency, there's nothing to show     testimony “that y'all recorded over.” When the prosecutor's
today that it does that.”                                          hearsay objection was sustained, McCann asked the appellant
                                                                   to describe the events after December 27th, and the appellant
                                                                   was once again allowed to narrate. He was not specifically
                   D. Trial on the Merits                          asked on direct examination about the killings themselves.

Trial on the merits began on May 25, 2011. During opening          On cross-examination, the appellant denied having threatened
statements, McCann informed the jury that the defense              his first attorney, Gonzalez. He claimed that Gonzalez
expected the evidence to show that the appellant killed his        withdrew from the case because the appellant had tried to put
wife in a “jealous rage,” but that the killing of his mother-      a stop to the depositions of his children. The appellant further
in-law, with whom the appellant had always gotten along,           maintained that his children were coerced into giving the
occurring in the close quarters of the upstairs hallway,           deposition testimony against him. At this juncture, McCann
had not been perpetrated intentionally—that the appellant,         renewed his motion for a competency examination, but the
while certainly guilty of “two terrible horrible crimes[,]”        trial court denied it, observing that “[t]here's nothing that
was not guilty of a capital offense. Along the way, McCann         I have been shown that changes anything that I have been
explained to the jury that the appellant “doesn't like me          shown before.” The appellant next denied that his attorneys
very much.” Later, he observed: “And if you look at him            were “trying to save [his] life[.]” When the prosecutor asked
there, he's a large man, as he sits there scowling at me.          the appellant whether McCann had been misleading the jury
Because he can't admit what he did, to himself or anybody          panel during his opening statement, the following transpired:
else.” The ensuing defensive strategy was to acknowledge
that the State's evidence showing that the appellant was             A I asked him, before he made his statement, what—what I
responsible for the two murders was at least substantial, if not     was curious about what exactly was he going to make in his
overwhelming, but to try to engender a reasonable doubt in           opening statement. And the reason I said that—the reason
the jurors' minds whether he harbored the requisite culpable         I asked that question is because that we weren't talking.
intent with respect to the death of his mother-in-law to satisfy     They weren't coming to see me. They didn't want to hear
the statutory criteria for a capital offense.                        anything I had to say about the things that I was saying
                                                                     about the mayor and all the allegations that I was saying.
 *7 On May 27th, the Friday before Memorial Day, the                 They wouldn't investigate it. They kept bringing me—I
appellant exercised his right to testify in his own behalf,          have proof of everything that I'm saying.
against the advice of counsel. After having the appellant
                                                                     Q Do you know they talked to the mayor?
identify photographs of his children, wife, and mother-in-law,
McCann simply asked him whether there was “something                 A That's what they told me.
you would like to tell this jury[.]” The prosecutor objected
that the question called for a narrative response. Instructed to     Q I know. Everybody did.



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Turner v. State, --- S.W.3d ---- (2013)




   *8 A And I've, you know—I looked at the thing. He was             They have seriously neglected my case. They have ignored
    obviously lying.                                                 the information I have provided them for my defense.
                                                                     Witnesses for my defense haven't been contacted that I've
  Q Do you know these two gentlemen have tracked                     given them.
   everything you have ever said down?
                                                                     He made up—he came up with an opening statement when
  A No.                                                              I had—signed an affidavit or even told him that I—that I
                                                                     killed anyone. So where did he get this opening statement
  Q And it comes to one conclusion: You killed those two
                                                                     from, that it's an accident? He has not defended me.
    women.
                                                                   McCann reminded the trial court that he had recently
  A I didn't kill anyone.
                                                                   renewed his request for a competency hearing based upon the
  Q And they're trying to save your life. You understand that?     appellant's paranoia. Directed to respond specifically to the
                                                                   appellant's complaints, McCann replied:
  A I didn't kill anyone.
                                                                     We have, during the course of this investigation—Without
The appellant further testified that his daughter had made a         going into too much client confidence, Mr. Turner has
mistake to identify him as the killer. He explained that he fled     indicated that there were entourage members of the mayor
the state after the killings because the Mayor had threatened        of Kendleton who might fit his description as well as other
him and had sent two unidentified men to break into his              individuals whom he might have hired who was part of
house. Asked whether his lawyers were part of this apparent          his hang-around crew. We have found no such individual
“conspiracy” against him, the appellant replied that they were       who would refute the 100 percent-certain eyewitness
not “going out and getting the evidence that I was talking           identification of his own children during the incident.
about, and I was wondering why.” The prosecutor wrapped
up his cross-examination of the appellant by asking him:             THE COURT: Mr. Turner testified that he was afraid of
                                                                     certain individuals and indicated that that was part of the
  Q All right. Let me ask you this way: Is there any way, Mr.        reason why he fled. Did you pursue that investigation?
    Turner, you want to change any of your story right now
    and beg for forgiveness from this jury at all?                    *9 MR. MCCANN: We have located no such individuals,
                                                                     either as a friend of the mayor of Kendleton nor any
  A I didn't kill anyone.                                            indication that the mayor of Kendleton was anywhere near
                                                                     his home on the night that he mentioned, nor that he has any
  Q I know. Do you know how dangerous that makes you?                proclivity or, indeed, any real relationship with his wife.
                                                                     That doesn't mean that Mr. Turner didn't think that there
McCann's objection was sustained, but his motion for mistrial
                                                                     was one, but at the same time, we found no such indication.
was denied. On redirect, McCann simply asked:
                                                                     THE COURT: Mr. Turner has raised the issue that you
  Q Mr. Turner, in your mind, all that drivel was true, wasn't
                                                                     have not pursued the theory that it was an accident. Would
    it?
                                                                     you respond to that allegation?
  A It is true.
                                                                     MR. MCCANN: I understood him to mean that he rejected
Shortly after, the defense rested and both sides closed.             the theory that it was an accident because his testimony
                                                                     indicated he was not there. The only plausible defense that
On Tuesday, May 31st, the morning that final arguments for           Mr. Moncriffe and I could see coming from the evidence
the guilt phase were set to begin, the appellant unequivocally       that we examined is that the second killing—while the first
announced that he was “firing my defense team and                    killing may have been an act of passion between a jealous
representing myself. I should be able to represent myself at         husband and wife, the second killing would appear to have
any stage of this trial. I have that right.” 13 When the trial       been unintended. At least there was no indication of any
court asked why, the appellant asserted:                             quarrel or violence between Mr. Turner and Betty Jo.




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Turner v. State, --- S.W.3d ---- (2013)


                                                                   *10 [1]      [2] A criminal defendant who is incompetent may
  And given the circumstances and the placement of the
                                                                   not be put to trial without violating due process. 16 “It has
  second floor, it is conceivable that he did not intend
                                                                   long been accepted that a person whose mental condition is
  that killing and that killing was, in fact, either accidental
                                                                   such that he lacks the capacity to understand the nature and
  or perhaps done in a reckless manner that would have
                                                                   object of the proceedings against him, to consult with counsel,
  indicated a lesser charge might be available or that we
                                                                   and to assist in preparing his defense may not be subjected to
  could argue plausibly that that killing was not intentional.
                                                                   trial.” 17 The constitutional standard for competency to stand
Based upon these representations, the trial court summarily        trial asks whether the defendant has a sufficient present ability
denied the appellant's demand to “fire” his trial counsel and      to consult with his lawyer with a reasonable degree of rational
represent himself. Closing arguments began soon after.             understanding and whether he has a rational as well as factual
                                                                   understanding of the proceedings against him. 18 Due process
The prosecutors used their opening remarks to highlight the        also mandates state procedures that are adequate to assure that
appellant's claim that his children had mistakenly identified
                                                                   incompetent defendants are not put to trial. 19 To that end,
him and to pound away at his failure to take responsibility. 14    our statutory scheme has codified the constitutional standard
For his part, McCann described the appellant's behavior this       for competency to stand trial and has elaborately described
way:                                                               the circumstances that require, and procedures for making, a
                                                                   determination of whether a defendant is competent to stand
             When I got up and talked to you
             in opening, I told you that my                        trial. 20
             client, Albert James Turner, still hasn't
             accepted what happened because on
             that night, he snapped. You actually                                    A. Substantive Standard
             got to watch what he thinks is the truth
             because he literally cannot accept what               The Texas Legislature has adopted the constitutional standard
             happened. In his mind, very sadly, it is              for competency to stand trial in Article 46B.003(a) of the
             the truth.                                            Texas Code of Criminal Procedure. 21 The appellant in this
                                                                   case does not contend that he lacked at least a factual
He then went on to urge the jury nevertheless to accept the
                                                                   understanding of the proceedings against him. There is
defensive theory that the appellant had not intended to kill his
                                                                   no reason to doubt that he understood that his life and
mother-in-law and, on that account, to find him not guilty of
                                                                   liberty were at stake and what roles the various participants
capital murder.
                                                                   in the proceedings played. At issue is whether there was
                                                                   any substantive indication that he lacked either a rational
The State argued in response that the wound inflicted on
                                                                   understanding of the proceedings or a present sufficient
the appellant's mother-in-law was too severe to justify a
                                                                   ability to consult with counsel with a reasonable degree of
finding that it was not intentionally inflicted. Along the way,
                                                                   rational understanding—or, as the trial court in this case
the prosecutor once again emphasized the absurdity of the
                                                                   ordered Dr. Almeida to assess, whether he was “able to
appellant's testimony, reminding the jury that even McCann
                                                                   rationally assist his lawyers in the defense of his case.”
had characterized his story as “drivel.” Later, during their
closing arguments at the punishment phase of trial, the State
                                                                    [3]    The Legislature apparently regards a defendant's
similarly relied upon the appellant's implausible guilt-phase
                                                                   capacity to rationally assist in the preparation and execution
testimony to argue that the remorselessness he displayed
                                                                   of his defense to be indispensable to a defendant's competency
in the courtroom and from the witness stand constituted
                                                                   to stand trial. We may infer this from the fact that it
compelling evidence that should convince the jury that he
                                                                   has directed that forensic psychologists and psychiatrists
would constitute a future danger to society. 15                    appointed by the trial court to perform competency
                                                                   evaluations should specifically consider, among other things:
                                                                   1) the defendant's “capacity ... during criminal proceedings
                         II. The Law                               to ... engage in a reasoned choice of legal strategies and
                                                                   options;” as well as 2) “the impact of the mental illness or
                                                                   mental retardation, if existent, on the defendant's capacity to


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Turner v. State, --- S.W.3d ---- (2013)


engage with counsel in a reasonable and rational manner              Under our current statutory scheme, 29 any “suggestion”
    22
[.]” These legislative criteria for competency contemplate           of incompetency to stand trial calls for an “informal
a defendant who is at least minimally able to interact with his      inquiry” to determine whether evidence exists to justify a
trial counsel in a “reasonable and rational” way (even if they       formal competency trial. 30 In 2009, this Court held that
do not necessarily agree) in formulating decisions how most          evidence that a “suggestion” of incompetency sufficient to
effectively to pursue his defense.                                   trigger an informal inquiry was the same as the bona fide
                                                                     doubt standard from the previous statutory regime. 31 The
 [4]      [5]       Other jurisdictions have construed the
                                                                     Legislature has subsequently rejected the bona fide doubt
constitutional standard for competence to stand trial
                                                                     standard for purposes of Article 46B.004, but the amendment
consistent with this understanding. Various courts have
                                                                     by which this was accomplished did not become effective
declared defendants to be incompetent under the
                                                                     until September 1, 2011, several months after the appellant's
constitutional standard upon findings that they suffered from
mental illnesses causing paranoid delusions that impacted            trial. 32 In any event, here, at least as of May 20, 2011, when
their perception of reality in ways that adversely affected          voir dire was interrupted for the hearing at which Dr. Almeida
their ability to rationally comprehend the proceedings against       testified, the trial court was obviously persuaded that a bona
                                                                     fide doubt did exist as to the appellant's competency.
them or interact rationally with trial counsel. 23 And we
think there is particular cause for concern when a defendant's
                                                                      [8] The question therefore becomes whether, in light of
mental impairment directly touches upon certain fundamental
                                                                     what became known to the trial court by the conclusion
decisions that the criminal justice system reserves for him to
                                                                     of this informal inquiry, it should have conducted a formal
make personally—albeit after “engaging” meaningfully with
                                                                     competency trial. The answer depends upon whether “some
counsel—such as whether to testify in his own defense. 24            evidence from any source” had arisen by that time “that would
Precisely because the defendant retains ultimate authority           support a finding that [the appellant] may be incompetent to
over these decisions, it is critical that he be able “to
                                                               stand trial.” 33 In making this determination, a trial court must
consult with counsel with a reasonable degree of rational
                                                               consider only that evidence tending to show incompetency,
understanding” about them. 25                                  “putting aside all competing indications of competency, to
                                                               find whether there is some evidence, a quantity more than
 *11 [6] [7] This is not to imply that a defendant's mental none or a scintilla, that rationally may lead to a conclusion
illness plus his failure to communicate with counsel will
                                                               of incompetency.” 34 If so, then “evidence exists to support a
invariably or necessarily add up to a finding of incompetence.
                                                               finding of incompetency,” and the statutory scheme requires
The fact that a defendant is mentally ill does not by itself
                                                               the trial court to conduct a formal competency trial. 35
mean he is incompetent. 26 Nor does the simple fact that
he obstinately refuses to cooperate with his trial counsel. 27        [9]   [10] Should the formal competency trial result in
Indeed, even a mentally ill defendant who resists cooperating        a finding of competency, the trial court is not obliged
with his counsel may nevertheless be found competent if the          to revisit the issue later absent a material change of
manifestations of his particular mental illness are not shown        circumstances suggesting that the defendant's mental status
to be the engine of his obstinacy. 28 But when a defendant's         has deteriorated. 36 However, especially when there has been
mental illness operates in such a way as to prevent him              a suggestion of incompetency but no formal adjudication
from rationally understanding the proceedings against him or         of the issue, due process requires the trial court to remain
engaging rationally with counsel in the pursuit of his own best      ever vigilant for changes in circumstances that would make
interests, he cannot be made to stand trial consistent with due
                                                                     a formal adjudication appropriate. 37 In the instant case, we
process. Evidence that raises this possibility necessitates an
                                                                     find no fault in the trial court's failure to conduct a formal
informal inquiry, and if that inquiry reveals that the possibility
                                                                     competency trial following the initial evaluations by Drs.
is substantial, a formal competency trial is required.
                                                                     Gollaher and Axelrad, since they deemed the appellant to be
                                                                     competent. After all, the appellant's trial counsel made no
                                                                     request for a formal competency trial at that time. But as of
                         B. Procedure                                May 20, 2011, when the trial court concluded its informal
                                                                     inquiry, there was some evidence to support a rational finding



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Turner v. State, --- S.W.3d ---- (2013)


of incompetence, and, for the reasons that we describe below,       seems to have one train of thought and he disregards all other
the appellant's request for a formal competency trial should        rational thoughts completely.” The appellant's paranoia had
then have been granted.                                             progressed to the point that, if the representations of his own
                                                                    lawyers are to be credited, he believed that they were openly
                                                                    conspiring with the prosecutors to secure his conviction. He
                                                                    flatly refused to communicate with them during the voir dire
                         III. Analysis
                                                                    proceedings.
 *12 Shortly after indictment in April of 2010, and before
the appellant was afforded much of an opportunity to interact       We think the preceding information constitutes at least
with Gonzalez, his first-appointed trial counsel, both Dr.          some evidence that would support a rational finding that
Gollaher and Dr. Axelrad deemed him competent to stand              the appellant lacked the capacity to “engage” with his trial
trial. The record does not show that the appellant had a history    counsel rationally or to make rational choices with respect
of mental illness. Nevertheless, both of the competency             to his legal strategies and options. In finding otherwise at
reports reflect the substantial possibility that he was suffering   the conclusion of the informal inquiry on May 20, 2011, the
from paranoia that may have been the product of “a paranoid         trial court made two mistakes. First, the trial court focused
disorder,” and that he was apparently exhibiting delusions.         erroneously on evidence of competency rather than evidence
Gollaher expressly found that the appellant had a factual           of incompetency, relying upon the ultimate conclusions
understanding of the proceedings and could “communicate             of Drs. Gollaher and Axelrad, as well as Dr. Almeida's
events in an understandable manner and can report his               subsequent opinion that the appellant's cognitive functioning
state of mind.” But her report did not speak specifically to        had not significantly changed in the interim. But Almeida
whether his condition would adversely affect his capacity           was unable to say that the appellant was competent to
either to “engage with counsel in a reasonable and rational         assist counsel in his defense, and both Gollaher and Axelrad
manner[,]” or to “engage in a reasoned choice of legal              observed signs of paranoid delusions that would at least
                                                                    minimally support a finding that the appellant suffered from
strategies and options[.]” 38 Axelrad's report did speak to
                                                                    a mental disorder that impaired his ability to participate
those capacities and, in fact, he found the appellant to
                                                                    rationally in the preparation and presentation of his defense.
be “mildly impaired” with respect to both. Axelrad noted
                                                                    The interactions between the appellant and his trial counsel in
that, “[i]n the event [that the appellant] has a paranoid
                                                                    the intervening months constituted substantial evidence that
disorder, this may be contributing to the problems he is
                                                                    Axelrad's nascent concerns about the appellant's capacity to
experiencing with his attorney.” Notwithstanding the experts'
                                                                    consult rationally with his attorneys were subsequently borne
ultimate conclusions that the appellant was competent, the
                                                                    out. There was some evidence that would rationally support a
trial court was effectively put on notice of the need to maintain
                                                                    finding of incompetency to stand trial, notwithstanding other
vigilance to assure that the appellant's due process rights were
                                                                    evidence to the contrary.
preserved.

                                                                     *13 [12] Second, the trial court erred to the extent that it
 [11] Barely over a month after the initial evaluations,
                                                                    denied the appellant's request for a formal competency trial
the appellant's attorneys were already experiencing “a little
                                                                    on the grounds that the appellant failed to demonstrate any
bit of a disconnect” with him. By November of 2010, the
                                                                    “change” of status since the earlier findings of competency
appellant had filed a grievance against his lawyers and
                                                                    by Gollaher and Axelrad. There was no adjudication of
requested a new “defense team.” In December, Gonzalez's
                                                                    the competency issue in the summer of 2010 following
continued representation of the appellant became “untenable”
                                                                    their evaluations—not even an informal inquiry to decide
after the appellant threatened him with physical violence
                                                                    whether there was sufficient evidence at that time to invoke
over their disagreement with the defense strategy to depose
                                                                    a formal competency trial. Thus, there was no prior judicial
the appellant's children. By April of 2011, it began to
                                                                    competency determination to justify a requirement of a
emerge that the appellant's displeasure with trial counsel
                                                                    change in circumstances. Moreover, even had there been
involved more than the depositions alone; he was also upset
                                                                    some previous judicial finding of competency, the trial court
that trial counsel were not pursuing a sufficiently vigorous
                                                                    was mistaken to conclude that no new circumstances existed
investigation into his apparently delusional—and, in any
                                                                    to merit a second look. By May of 2011, there had arisen new
event, clearly irrelevant—claim that the Mayor of Kendleton
                                                                    evidence in the form of the appellant's obviously irrational
had sired his youngest child. According to Moncriffe, “He


                © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                            11
Turner v. State, --- S.W.3d ---- (2013)


belief that his ongoing delusion with respect to the Mayor            erred in failing to grant the appellant's request for a formal
of Kendleton somehow provided him with a defense to                   competency trial under Article 46B.005.
prosecution for capital murder that was preferable to the
approach that his trial lawyers urged him to pursue. That
the appellant persisted in this delusion-fueled belief against
                                                                                              DISPOSITION
the emphatic advice of counsel, together with the earlier
suggestions that he suffered from a paranoid disorder, was            Accordingly, we sustain the appellant's ninth point of error,
enough to raise the likelihood of incompetency to a level             abate the appeal, and remand the cause to the trial court.
beyond that which is evinced by a mere dispute between                On remand, the trial court shall first determine whether it
an ordinarily obstinate defendant and his legal counsel over          is presently feasible to conduct a retrospective competency
plausible trial strategies. It is at least some evidence to support   trial, given the passage of time, availability of evidence,
a rational finding that, because of mental illness, the appellant
                                                                      and any other pertinent considerations. 42 Should the trial
was unable to engage rationally with his lawyers and was
                                                                      court deem a retrospective competency trial to be feasible,
therefore incapable of participating rationally in his own
                                                                      it shall proceed to conduct such a trial in accordance
defense. 39 Most critically, he may well have been incapable          with Chapter 46B, Subchapter C, of the Code of Criminal
of making a rational, non-delusional decision with respect
                                                                      Procedure. 43 Regardless of whether the trial court deems a
to whether or not to accept his trial counsel's advice not to
                                                                      retrospective competency trial to be feasible, the record of the
testify. 40                                                           proceedings on remand shall then be returned to this Court for
                                                                      reinstatement of the appeal. 44
We hasten to emphasize the limited scope of our holding
today. This is not a case in which there is some evidence of
mental illness but no evidence from which it may reasonably
be inferred that the defendant's mental illness renders him           KELLER, P.J., filed a dissenting opinion in which MEYERS,
incapable of consulting rationally with counsel. Nor is it            KEASLER, and HERVEY, JJ., joined.
a case in which there is some evidence that the defendant
                                                                      KELLER, P.J., filed a dissenting opinion in which MEYERS,
obstinately refuses to cooperate with counsel but nothing
                                                                      KEASLER and HERVEY, JJ., joined.
from which to rationally infer that his obstinacy is fueled
                                                                       *14 Appellant, who has no history of mental illness,
by mental illness. It is not even a case in which there is
                                                                      understands what he is accused of and the nature of the
some evidence of mental illness, some evidence of obstinacy,
                                                                      proceedings, and he understands who his attorneys are and
but ultimately no rational basis to infer that the obstinacy
                                                                      that they are tasked with representing him. His refusal to
is a product of the mental illness. None of these scenarios
                                                                      cooperate with his attorneys does not, in my view, make him
would compel a formal competency trial. Instead, this case
                                                                      incompetent to stand trial. The Court maintains, however,
presents one of the relatively rare instances in which there
                                                                      that there is some evidence that appellant is incompetent to
is at least some evidence from which it may rationally be
                                                                      stand trial as a result of paranoid delusions about his attorneys'
inferred not only 1) that the defendant suffers some degree of
                                                                      motives and other aspects of the case. I disagree.
debilitating mental illness, and that 2) he obstinately refuses
to cooperate with counsel to his own apparent detriment, but
                                                                      Under our statute a person is incompetent to stand trial if he
also that 3) his mental illness is what fuels his obstinacy.
                                                                      does not have:
Whenever a trial court's informal inquiry establishes that there
is some evidence that could rationally support all three of             (1) sufficient present ability to consult with the person's
these inferences, it should conduct a formal competency trial.          lawyer with a reasonable degree of rational understanding;
                                                                        or
 *14 Therefore, bearing firmly in mind that the standard
for requiring a formal competency trial is not a particularly           (2) a rational as well as factual understanding of the
onerous one—whether, putting aside the evidence of                      proceedings against the person. 1
competency, there is more than a scintilla of evidence that
would support a rational finding of fact that the accused is          No one disputes appellant's competence under part (2); that
                             41                                       is, no one suggests that he lacks a rational as well as factual
incompetent to stand trial        —we hold that the trial court
                                                                      understanding of the proceedings against him. The issue


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Turner v. State, --- S.W.3d ---- (2013)


before us is his competence under part (1), whether he has        take), Dr. Axelrad nevertheless concluded that appellant “is
sufficient present ability to consult with his lawyer with a      presently mentally competent to stand trial.”
reasonable degree of rational understanding.
                                                                  In April of 2011, appellant was referred by his attorneys to
The trial court had before it three types of evidence relevant    Dr. Shawanda Williams–Anderson. She concluded, “Because
to this determination: (1) expert evaluations, (2) statements     of the seriousness of Mr. Turner's charges, his unwillingness
by appellant's attorneys, and (3) appellant's own statements.     to participate in his defense, and his extreme distrust of
None of this evidence shows that appellant lacked the             every member of his team his competency to stand trial is
sufficient present ability to consult with his attorneys with a   questionable.” She further stated that appellant is “making
reasonable degree of rational understanding.                      dire decisions that are detrimental to his defense and has
                                                                  understanding of doing so. Thus his mental capacity to
                                                                  stand trial is not the source of contention, but his ability to
                                                                  participate in the legal process was closely evaluated.” She
                       A. The Experts
                                                                  concluded that, “To date, his participation and involvement
Appellant was first evaluated by Dr. Karen Gollaher in            have had adversarial effects and hindered the defense team
May of 2010. He largely cooperated with the competency            in every way. Therefore, Mr. Turner cannot be expected to
evaluation but would not discuss his actual actions at the        comply with his team during the progression of his defense
time of the crime in order to protect his Fifth Amendment         including trial. Under Article 46B, Mr. Turner's actions would
rights. Although appellant reported some possible paranoid        deem him incompetent to stand trial.”
thoughts, Dr. Gollaher concluded that “these do not
undermine his ability to participate in the court procedures.”    Essentially, Dr. Williams–Anderson conceded that appellant
With respect to competence to stand trial, Dr. Gollaher found:    had the mental capacity to stand trial but concluded that
                                                                  appellant distrusted the defense team and was acting in a
             *15     Mr. Turner knows the                         way detrimental to his defense. But Dr. Williams–Anderson's
            charge against him and a possible                     focus on appellant's motives and actions is beside the point.
            punishment. He understands the role                   Appellant had the mental capacity to work with the members
            of various courtroom person[ne]l, the                 of his defense team but chose not to work with them because
            available pleas and the plea bargaining               he distrusted them. Dr. Williams–Anderson's conclusion that
            process.... [H]e was concerned that his               appellant's “actions would deem him incompetent to stand
            version of events was heard by the                    trial” is faulty because a person's actions can never render him
            public and he discussed issues that                   incompetent to stand trial. It is the person's mental ability that
            might be considered mitigating. This                  matters.
            suggests that he does have an interest
            in defending himself and may not be                   Finally, at the urging of defense counsel, the trial court
            as indifferent as he presents himself to              appointed Dr. M. Connie Almeida to evaluate appellant in
            be. He is capable of communicating                    May of 2011. Dr. Almeida said that she could not reach
            events in an understandable manner                    a professional opinion regarding appellant's competency to
            and can report his state of mind.                     stand trial based on her interview “because of his limited
                                                                  cooperation.” However, based on her review of records,
Dr. Gollaher ultimately concluded that, within a reasonable       interview with jail staff, and her limited interview with
degree of certainty, appellant was currently competent to         appellant, it was her professional opinion that appellant's
stand trial.                                                      “functioning has not changed significantly since his previous
                                                                  assessments of competency” by Dr. Gollaher and Dr. Axelrad.
In June of 2010, appellant was evaluated by Dr. David             “It is my opinion,” she stated “that there have been no
Axelrad. Dr. Axelrad said that appellant “may have a mental       significant changes in Mr. Turner's emotional or cognitive
illness and the diagnosis may be a paranoid disorder”             functioning since the time of these evaluations (6/1/10 and
but that appellant was unwilling to disclose the nature of        6/18/10) that would adversely impact his competency to stand
the relationship with his wife immediately preceding the          trial at the present time.” When questioned at a hearing, Dr.
commission of the murders. Though appellant might benefit         Almeida stated that she could not definitively say that he
from psychiatric medications (which he was refusing to


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Turner v. State, --- S.W.3d ---- (2013)


was not paranoid and that such condition was not interfering         to us to be a recalcitrant client and it has—has clearly, to us,
with his ability to rationally assist his defense. But she also      gotten beyond that.”
affirmed, “There is no current evidence to substantiate a
delusional or other psychiatric disorder.”                           McCann remarked that, “I've never been in a place where
                                                                     the client has withdrawn to this degree.” McCann stated that
                                                                     he believed there had been a change, though perhaps not
                                                                     witnessed by the jail, but a noticeable change in appellant's
                       B. The Attorneys
                                                                     demeanor and behavior over the last several months. McCann
 *16 Attorneys Tyrone Moncriffe and Patrick McCann                   urged the trial court “to give us a chance to sit there and flesh
executed affidavits, but these affidavits were not directly          this out during a competency trial, and even if necessary, to
introduced into evidence before the trial court. Some of             appoint Mr. Turner other counsel and allow Mr. Moncriffe
the content of these affidavits was introduced through               and I to testify and subject us to cross.”
Dr. Almeida's testimony. Dr. Almeida summarized these
affidavits as expressing the concern that appellant was              I believe an attorney's statements about his client's mental
accusing counsel of coercion, hiding and misusing                    state can, in appropriate circumstances, raise an issue
information, and not representing appellant's best interests.        of incompetency without regard to expert testimony. But
Counsel elicited testimony from Dr. Almeida that appellant           sometimes an attorney's observations, especially with respect
actually believed that the defense attorneys were coercing           to delusions, are not alone a sufficient basis for concluding
appellant's children into testifying against him and that            that a defendant is incompetent. 2 Regardless, in the present
McCann was part of a secret society that desired appellant's         case, the defense attorneys specifically refrained from relying
conviction. Dr. Almeida also recalled that Moncriffe had             upon their own recollections as evidence. Their affidavits
“indicated several instances of delusional comments and              were not introduced into evidence and were addressed only as
thinking.” It was partly based upon these affidavits that Dr.        part of the basis for Dr. Almeida's opinions. But as explained
Almeida said that she could not definitively say that appellant      above, Dr. Almeida ultimately concluded, despite these
did not have a paranoid condition that was interfering with          affidavits, that there was no current evidence to substantiate
his ability to assist his defense. But even considering those        a delusional or other psychiatric disorder. And in making
affidavits, Dr. Almeida nevertheless testified that appellant's      statements to the trial court, McCann refrained from framing
condition had not changed from the prior interviews and that         those statements as testimony, which would have subjected
there was no current evidence to substantiate a delusional or        him to cross-examination. Instead, he invited the trial court to
other psychiatric disorder.                                          rely upon its own observations.

At the conclusion of the hearing, McCann argued that                  *17 Pointedly, the trial court articulated its own
appellant's paranoia had impaired the defense because                observations, concluding that there was no evidence of
appellant was refusing to discuss any of the jurors                  incompetency, as follows:
with counsel during voir dire. McCann conceded that
“examinations in the year prior,” by Dr. Gollaher and Dr.                         I have watched Mr. Turner throughout
Axelrad, “although they showed some of the problem, did not                       these several weeks that we've been
at that time rise to the level, in their opinion of incompetency.”                going through the jury selection. He
But McCann said, “I can tell you that it has materially                           has been paying attention; he has been
changed over the last several months, perhaps only because                        reacting. Your comment this afternoon
of the proximity of the actual case that's brought this out, but                  about suspicion had a definite reaction
it has—it has brought us to a complete standstill in our ability                  from Mr. Turner, so he's paying
to determine or advise Mr. Turner about whether to testify or                     attention. He knows what's going on.
whether to assist in any of this.” At that point, the prosecutor                  The fact that he will not talk to you,
interjected, “I don't—I don't mind him arguing, but I've got to                   while that makes defense counsel's
be able—to be able to cross-examine somebody if he's going                        representation difficult, it doesn't rise
to give you new evidence, Judge.” McCann responded, “He's                         to the level of incompetency. The
right. He's right, and I'll rephrase that. The Court has watched                  evidence just doesn't show that. And
Mr. Moncriffe and myself struggle with what appeared at first                     the case cited by the prosecution in this



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Turner v. State, --- S.W.3d ---- (2013)


                                                                     He went out and got a—tried to get a doctor to rule me
             case recognizes that behavior alone
                                                                     incompetent. And the reason that he was trying to do that ...
             doesn't meet the requirements. It's one
                                                                     another defense attorney here tried to get legal guardianship
             part of a whole matter that has to be
                                                                     of me so they could file stuff on my behalf instead of getting
             looked at. I wanted to hear evidence
                                                                     my family members.”
             that would lead us to a full hearing,
             but I have not heard that; therefore, I'm
                                                                      *18 Appellant would not be the first guilty defendant to
             denying it.
                                                                     refuse to cooperate with his attorneys. Despite overwhelming
                                                                     evidence showing that he intentionally killed two people,
Even if the attorneys' observations were taken as evidence,
                                                                     appellant wanted an acquittal. He concocted a far-fetched
those observations do not indicate that appellant was
                                                                     story to attempt to show his innocence. It might not be
incapable of consulting with his attorneys with a reasonable
                                                                     an exaggeration to say that his position was extremely
degree of rational understanding. They show merely that
                                                                     shortsighted and wrongheaded, but that does not make
he was unwilling to do so. No one disputes that appellant
                                                                     him incompetent. His attorneys refused to go along with
understood what the proceedings were about and that he
                                                                     appellant's desired strategy. While I don't fault them for that,
was mentally able to consult with the attorneys if he
                                                                     it is understandable that appellant would. The attorney-client
so desired. That he lacked the desire to do so is not
                                                                     relationship had deteriorated to the point that his own attorney
evidence of incompetence. And to the extent appellant's lack
                                                                     was calling his testimony “drivel.” It is not difficult to see
of cooperation escalated, this was based on the fact that
                                                                     why appellant is upset with them. Appellant has been an
the attorneys progressively engaged in tactics with which
                                                                     extraordinarily difficult client who seems to have made bad
appellant disagreed, e.g. deposing appellant's children, and by
                                                                     choices about trial strategy. But bad choices are not the same
the fact that the trial date loomed ever closer, both of which
                                                                     as irrational choices, except in the loosest, non-legal sense.
are at least somewhat rational explanations for appellant's
                                                                     To the extent that the Court conflates the two, I believe that
uncooperative behavior.
                                                                     it errs.

                                                                     The trial court was within its discretion to find, after the
                  C. Appellant's Testimony                           testimony of three expert witnesses, that appellant had not
                                                                     established a right to a full hearing.
Appellant testified at trial that he did not commit the murders
and that he was not even present at the time. He also testified      I respectfully dissent.
that his wife had been having an affair with the mayor and
that the mayor had been threatening him. He claimed that his
children were coerced into making statements against him. He         3
disagreed with his attorneys' decision to allow his children to
participate in depositions, and he disagreed with his attorneys'
strategy to admit in opening statement that he killed his wife.      3
Appellant also made statements that indicated he believed
the defense attorney and the prosecutor were suppressing
                                                                     3
evidence and conspiring to convict him.

On redirect, McCann asked appellant, “Mr. Turner, in your            3
mind, all that drivel was true, wasn't it?” Appellant responded,
“It is true.”
                                                                     3
On cross, the prosecutor asked, “Do you understand your
attorney just said that you're lying, that it's drivel?” Appellant
responded, “He's been saying this and trying to pretend.


Footnotes



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Turner v. State, --- S.W.3d ---- (2013)


1      TEX. PENAL CODE § 19.03(a)(7)(A).
2      TEX.CODE CRIM. PROC. art. 37.071, §§ 2(b) & 2(e)(1).
3      TEX.CODE CRIM. PROC. art. 37.071, § 2(h).
4      In his ninth point of error, the appellant specifically argues that we should remand the cause for a retrospective competency hearing.
       Appellant's Brief at 29–31.
5      There is no evidence that the home was broken into, and the appellant was not charged with committing murder in the course of a
       burglary, another theory of capital murder. TEX. PENAL CODE § 19.03(a)(2).
6      According to the 2010 edition of the Physicians' Desk Reference, Risperdal is an “atypical antipsychotic” prescribed for the treatment
       of schizophrenia and bipolar disorder. PHYSICIANS' DESK REFERENCE 2682 (64th ed.2010).
7      Axelrad's report was submitted on the form approved by the Texas Correctional Office on Offenders with Medical or Mental
       Impairments under Section 614.0032(b) of the Texas Health and Safety Code. TEX.CODE CRIM. PROC. art. 46B.025(d); TEX.
       HEALTH & SAFETY CODE § 614.0032(b).
8      Because the presiding judge for the 268th Judicial District Court was out sick on December 10, 2010, both this ex parte conference
       in chambers and the hearing that occurred in open court later that same day were presided over by the judge of the 434th Judicial
       District Court.
9      We find no such motion or affidavit, however, in the record.
10     Other than the informal hearing on April 18th, after which the trial court ruled that no formal competency hearing was necessary,
       there had been no prior competency hearing.
11     We note here that having a rational understanding of the proceedings is not the same thing as having the ability to consult with trial
       counsel with a reasonable degree of rational understanding or to “rationally assist his lawyers in the defense of his case”—the specific
       issue that the trial court asked Almeida to evaluate. Unless a criminal defendant satisfies both criteria, he is incompetent to stand
       trial. TEX.CODE CRIM. PROC. art. 46B.003(a).
12     Trial counsel later renewed their claim that the appellant was incompetent in a motion for new trial. At a hearing on that motion,
       McCann testified that, prior to trial, the appellant “gave, at one point, three different versions of what had happened the night of
       the killings to myself and Mr. Moncriffe, and at no point in the conversation, did he indicate which one he intended to testify to.”
       McCann continued:
              He became extremely upset with us and me, in particular, and began to ask if, you know, I was part of a secret society that was
              trying to get him killed or that was advancing my career by failing to defend him. He, at one point, when we were sitting next to
              each other, asked me if I was putting things in his coffee. It—it had got to the point of absurdity in some of our conversations.
              He constantly referred me to Biblical passages that appeared to have no relevance in terms of his defense.
              [The appellant] was obsessed with the Mayor of Kendleton with whom he believed his wife had had an affair. He was constantly
              attempting to blame the killings on this—that person, and that's essentially what he testified to, almost as if he wanted it to be
              true. And I don't—I'm not a mental health professional. I can only tell you that I have done this for many years. I have never
              had a client who, so fundamentally refused to acknowledge the daily reality that we were dealing with to the point that it was
              as if he was telling you the sky was always green. That—I have to attribute to something other than ... a simple attempt to lie
              because there was no basis for the lie. There was not a fact to support his view of what was going on.
13     In three points of error, the appellant argues that, if he was indeed competent, then he was denied his Sixth Amendment right to
       represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In view of our disposition of
       this appeal, we need not presently address this claim.
14     The jury heard a recording of the 911 call that the appellant's daughter placed to report the killings as they were occurring. The first
       prosecutor argued:
              And I know that the only person not affected by that 9–1–1 call was the man who created it, the Defendant. And he basically
              told you that when he got up on that stand. He told that [his daughter] had misidentified him, that maybe she thought she saw
              him, but that's not who it was.
              Misidentified him? This is a 12–year–old girl who's not identifying a stranger; she's not giving just a general description of
              someone. It's her father. She knows who he is, and she knows what he did.
              He chose to testify and tell you a story, and that's exactly what it was, a story. But it doesn't make sense because lies don't
              make sense.
          The second prosecutor took up the theme of the appellant's demeanor from the witness stand:
              There were no tears from the Defendant. And what you saw of him on Friday, there was no admissions by him of what he had
              done. There was no shame for what he had done. “I wasn't there.”
              And it was defiance. It was defiance with a complete lack of acceptance of what the facts are in his demeanor from the witness
              stand.



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            He comes up with a story it's the mayor of Kendleton's fault. What does that tell you about his demeanor and what his mindset
            is in this?
15     Those arguments include the following:
            And then what does he do? He gets up on the stand and he tells you that he wasn't even there. With all the overwhelming
            evidence against him, he still can't admit that he did it. He gets up on the stand and he says, I wasn't there, even though his
            own attorneys told you that he did it.
            What does that say about a person? What kind of person can sit and listen to the 9–1–1 call that y'all heard [the appellant's
            daughter] describing her grandmother and mother dying before her eyes and show no emotion? What kind of person can sit
            there and look at autopsy photos of what he's done, his wife and mother-in-law's necks open, and show no emotion? What kind
            of person is that?
            What does that say about a person? It says that they're a threat. It tells you that they're dangerous.
            He's shown absolutely no remorse and instead has done the complete opposite by saying he wasn't even there.
            You watched him testify during guilt/innocence. Do you remember he told you the story of how he went to his house and there
            was a man inside of his house? “I don't know who it was. It wasn't me. I wasn't there.”
            I know who was in his house and so do you. It was the Defendant. It was the Defendant. And it's not that he can't tell you; he
            won't. And just as we discussed during cross-examination of the Defendant, what kind of dangerous does that make him? What
            kind of dangerous does that make him? What kind of dangerousness is engendered in the lack of remorse?
16     E.g., Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (“We have repeatedly and consistently
       recognized that ‘the criminal trial of an incompetent defendant violates due process.’ ”) (quoting Medina v. California, 505 U.S. 437,
       453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)).
17     Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
18     Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
19     Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
20     TEX.CODE CRIM. PROC. ch. 46B, subch. A–C.
21     See TEX.CODE CRIM. PROC. art. 46B.003(a)(1) & (2) (“A person is incompetent to stand trial if the person does not have ...
       sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or ... a rational as
       well as factual understanding of the proceedings against the person.”).
22     TEX.CODE CRIM. PROC. art. 46B.024 §§ (1)(C) & (4) (emphasis added). (Section 4 of Article 46B.024 was amended in 2011,
       after the appellant's trial, and presently reads: “the degree of impairment resulting from the mental illness or mental retardation, if
       existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner.” Acts 2011,
       82nd Leg., ch. 822, § 7, p. 1897, eff. Sept. 1, 2011.). See Morris v. State, 301 S.W.3d 281, 285–86 & n. 10 (Tex.Crim.App.2009)
       (factors listed in Article 46B.024 are “relevant” to the determination of competency, including whether the defendant can “engage
       in a reasoned choice of legal strategies and options”).
23     See, e.g., Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973) (evidence did not support trial court's finding that the
       appellant was competent to stand trial when testimony showed without contradiction that he suffered from paranoid schizophrenia
       and his mental illness prevented him from cooperating with trial counsel); State v. Pedersen, 309 N.W.2d 490, 501 (Iowa 1981)
       (although the defendant appeared to have a factual understanding of the proceedings against him, delusions fueled by schizophrenia
       prevented him from cooperating with defense counsel, rendering him “unable to assist effectively in his defense”); United States
       v. Blohm, 579 F.Supp. 495, 505 (S.D.N.Y.1983) (Dusky standard not satisfied when, although he had factual understanding of the
       proceedings, the defendant harbored certain delusional beliefs that rendered him “unable to consult with his lawyer and assist in his
       own defense”); Strickland v. Francis, 738 F.2d 1542, 1551 (11th Cir.1984) (overturning a state-court finding that the applicant was
       competent to stand trial because expert testimony overwhelmingly established that his mental illness caused delusions that rendered
       him “unable to understand the nature of the proceedings against him and to participate meaningfully in his defense”); United States v.
       Hemsi, 901 F.2d 293, 296 (2nd Cir.1990) (evidence supported the trial court's finding of incompetency because the appellant's “major
       psychiatric disorder and his impaired sense of reality prevented him from focusing on his legal needs and from acting effectively on his
       intellectual understanding, and would prevent him from cooperating rationally in his defense”); Lafferty v. Cook, 949 F.2d 1546, 1556
       (10th Cir.1991) (state court erred to find the applicant competent on the basis of a simple factual understanding of the proceedings
       against him where his paranoid delusions rendered him unable “to realistically determine where his best interests lie”); United States
       v. Boigegrain, 155 F.3d 1181, 1189–90 (10th Cir.1998) (evidence sufficient to support trial court's finding of incompetency when
       “the defendant was delusional and suffered from ‘paranoid ideation,’ causing him to believe that his lawyer was participating in a
       conspiracy, along with the prosecutor and the judge, to incarcerate him for reasons unrelated to the charge against him”); United
       States v. Ghane, 490 F.3d 1036, 1040 (8th Cir.2007) (evidence sufficient to support trial court's finding of incompetency because,
       though the defendant had a factual understanding of the proceedings against him, “that understanding was not rational because it was



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Turner v. State, --- S.W.3d ---- (2013)


       premised on his delusion of a government conspiracy working against him, including the doctors, lawyers, and the court”); People v.
       Mondragon, 217 P.3d 936 (Colo.App.2009) (trial court erred to find the defendant competent based on factual understanding of the
       proceedings alone when his mental illness prevented him from making a rational decision whether to testify in his own behalf). See
       also Wilcoxson v. State, 22 S.W.3d 289, 305 (Tenn.Crim.App.1999) (“[C]ourts have acknowledged that, even if a criminal defendant
       has an intellectual understanding of the charges against him, he may be incompetent if his impaired sense of reality substantially
       undermines his judgment and prevents him from cooperating rationally with his lawyer[.]”). Other courts have followed suit, albeit
       in unpublished decisions. See United States v. Nagy, No. 96 CR. 601(RWS), 1998 WL 341940, at *7 (S.D.N.Y. June 26, 1998)
       (the defendant's “understanding of the pending criminal proceedings is necessarily skewed by his [delusional] belief that there is
       a conspiracy against him involving, among others, judges, the Government, a priest, his landlord, and all psychiatrists who have
       examined him”); United States v. Bauman, No. 07–20052–KHV, 2008 WL 2560706, at *7 (D.Kan. June 26, 2008) (notwithstanding
       evidence that the defendant had a factual understanding of the proceedings, the trial court “finds that due to a delusional disorder,
       defendant lacks sufficient contact with reality to the extent that he cannot rationally consult with or cooperate with his attorney in
       this case”); Aldridge v. Thaler, No. H–05–608, 2010 WL 1050335, at *33 (S.D.Texas March 17, 2010) (“Without the ability to make
       crucial decisions and add relevant information to the defense, communication [with counsel] does not amount to the consultation or
       assistance required by the Supreme Court.”); State v. Williamson, No. 1106025042, 2013 WL 268981, at *9 (Del.Super.Ct. January
       23, 2013) (“[D]efense lawyers must provide the best defense consistent with the client's direction. However, when delusions infect
       the process with fanciful aberrations, the trial would be a mockery of justice. Where a psychotic disorder precludes a meaningful
       defense, then no one can be subject to the gauntlet of trial.”).
24     See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (in a criminal case, “the accused has the ultimate
       authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own
       behalf, or take an appeal”); Ex parte Mines, 26 S.W.3d 910, 915 (Tex.Crim.App.2000) (“Another reason for requiring competency
       at trial is that the defendant must make significant choices that require the advice of counsel but that are ultimately decided by the
       defendant. The defendant must be competent to decide whether to invoke or to waive such personal constitutional rights.”) (citations
       omitted).
25     See Mondragon, supra, at 942 (“[I]f defendant's mental disease or defect rendered him incapable of deciding rationally whether to
       testify, then, because of the nature of that right, he necessarily lacked the sufficient present ability to consult with his lawyer with a
       reasonable degree of rational understanding and the requisite factual and rational understanding of the proceedings against him.”).
26     Moore v. State, 999 S.W.2d 385, 395 (Tex.Crim.App.1999); Bouchillon v. Collins, 907 F.2d 589, 593 (5th Cir.1990).
27     See Reed v. State, 112 S.W.3d 706, 710 (Tex.App.–Houston [14th Dist.] 2003, pet. ref'd) (“It is not enough for counsel to allege
       unspecified difficulties in communicating with the defendant.”) (citing Moore, supra, at 394).
28     Loftin v. State, 660 S.W.2d 543, 546–47 (Tex.Crim.App.1983).
29     In 2003, the Legislature comprehensively revised the procedures governing determinations of competency to stand trial, repealing
       former Article 46.02 of the Texas Code of Criminal Procedure, and replacing it with current Chapter 46B. See Acts 2003, 78th Leg.,
       ch. 35, §§ 1 & 15, pp. 57–68 & 72, eff. Jan. 1, 2004.
30     See TEX.CODE CRIM. PROC. art. 46B.004(c) (“On suggestion that the defendant may be incompetent to stand trial, the court shall
       determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may
       be incompetent to stand trial.”).
31     Montoya v. State, 291 S.W.3d 420, 425 (Tex.Crim.App.2009) ( “suggestion” means the same as bona fide doubt under former statutory
       provisions; hence, “[i]f a trial judge has a bona fide doubt about the competency of the defendant, he or she shall conduct an informal
       inquiry to determine if there is evidence that would support a finding of incompetence”). Cf. Alcott v. State, 51 S.W.3d 596, 600–01
       (Tex.Crim.App.2001) (under the former statutory scheme, bona fide doubt triggered competency inquiry during which the trial court
       must determine whether there is “some evidence” to support a finding of incompetency so as to trigger a formal competency hearing).
32     See Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901, eff. Sept. 1, 2011 (adding Subsection (c–1) to Article 46B.004
       to provide that: “A suggestion of incompetency is the threshold requirement for an informal inquiry under Subsection (c) and may
       consist solely of a representation from any credible source that the defendant may be incompetent. A further evidentiary showing is
       not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant.”).
33     TEX.CODE CRIM. PROC. art. 46B.004(c).
34     Ex parte LaHood, 401 S.W.3d 45, 52–53 (Tex.Crim.App.2013) (quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex.Crim.App.1980)
       (plurality opinion)). See also Williams v. State, 663 S.W.2d 832, 834 (Tex.Crim.App.1984) (applying Sisco, and construing prior
       statutory language that required a formal competency hearing upon a determination that there is evidence from any source “to support
       a finding of incompetency to stand trial”); Barber v. State, 737 S.W.2d 824, 828 (Tex.Crim.App.1987) (same); George E. Dix &
       John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31:36, at 49 (3rd ed. 2011) (“The




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       language used [in the current statutory scheme] for the standard to determine whether a hearing must be held is identical to that in the
       former statute determining whether a jury trial was required. This clearly incorporates the case law development of that criterion[.]”).
35     See TEX.CODE CRIM. PROC. art. 46B.005(a) & (b) (if informal inquiry reveals “that evidence exists to support a finding of
       incompetency,” then the trial court should order an expert examination and “shall hold a trial ... before determining whether the
       defendant is incompetent to stand trial”); George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE
       AND PROCEDURE § 31:53, at 63 (3rd ed. 2011) (“A trial on the merits of the competency issue is apparently required if the trial
       court determines that evidence exists to support a finding of incompetency. This standard uses the same terminology as former ...
       Article 46.02, section 4(a) of the Code of Criminal Procedure. Almost certainly, it will be given the same interpretation as that
       prior statutory language.”). If “evidence exists to support a finding of incompetency,” a trial is mandated unless the parties can
       agree without a trial that the defendant is incompetent. TEX.CODE CRIM. PROC. arts. 46B.005(a)–(c), 46B.054. Unlike the former
       statutory regime, which required that a jury be empaneled to determine competency, under the current statute, the trial court makes
       the ultimate determination with respect to competency unless either of the parties or the trial court itself registers a preference that
       “a jury shall make that determination.” TEX.CODE CRIM. PROC. art. 46B.051.
36     E.g., Ferguson v. State, 579 S.W.2d 2, 4–5 (Tex.Crim.App.1979); Bigby v. State, 892 S.W.2d 864, 885 (Tex.Crim.App.1994).
37     See Drope, supra, at 181 (“Even when a defendant is competent at the commencement of his trial, a trial court must always be alert
       to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.”).
38     TEX.CODE CRIM. PROC. art. 46B.024(4) & (1)(C), respectively.
39     In her dissenting opinion, Judge Keller relies heavily upon the lack of expert opinion that there was any “current evidence to
       substantiate a delusional or other psychiatric disorder.” Dissenting Opinion at 6. It is true that none of the experts in this case ultimately
       expressed such an opinion. However, it is not evident why the opinion of an expert should be considered indispensable to raising
       incompetency—especially considering our holding that an expert's opinion is not necessary to raise the defense of insanity (which,
       unlike the standard for incompetency to stand trial, expressly requires a finding that the defendant's condition be “a result of severe
       mental disease or defect”). Cf. Pacheco v. State, 757 S.W.2d 729, 736 (Tex.Crim.App.1988) (“[W]e hold that predicated lay opinion
       testimony when considered with facts and circumstances concerning an accused and of the offense may be sufficient to raise the
       issue [of insanity].”); TEX. PENAL CODE § 8.01(a). And while none of the experts here stated unequivocally that the appellant is
       mentally ill, both Gollaher and Axelrad noted the possibility of paranoid and delusional thinking on his part, and Axelrad observed
       that he was “an individual who may have a mental illness and [that] the diagnosis may be a paranoid disorder.” Axelrad even found
       appellant to be at least “mildly impaired” on that account in his ability to rationally engage with counsel about the case and about
       his choice of legal strategies and options. Almeida's conclusion that the appellant displayed no delusional disorder was based upon
       her perception that there were “no significant changes in [the appellant's] emotional or cognitive functioning” since the year-old
       evaluations of Gollaher and Axelrad. She took no account of the appellant's subsequent behaviors that might serve to substantiate
       the initial impressions of Gollaher and Axelrad that he may suffer from a “mental illness” that “may be a paranoid disorder.” These
       circumstances constitute some evidence—at least “more than none or a scintilla,” see note 34, ante—that the appellant suffers from
       a debilitating mental illness—enough that, in combination with some evidence of the other two factors, it may be said “that evidence
       exists to support a finding of incompetency” for purposes of a formal competency trial under Article 46B.005.
40     Supposing (without deciding) that the appellant was incompetent, it is not difficult to imagine how his delusional beliefs could have
       tainted the trial process. Taking the witness stand against the advice of counsel, he proceeded to testify at odds with the defensive
       posture of his lawyers based upon a wholesale denial of responsibility that was worse than implausible. This opened the door for the
       prosecutors to expose the irrationality of his account on cross-examination and then to highlight, at both the guilt and punishment
       phases of trial, that his willful refusal to acknowledge blame was nothing but a clear signal of his enduring threat to society. To the
       extent that the appellant's disastrous decision to testify was the product of a conflict with trial counsel that derived from a paranoid
       pathology, it is constitutionally intolerable. The trial court erred not to conduct a formal competency trial that could have ruled out
       that substantial possibility before proceeding to trial on the indictment.
          We do not mean by these observations to suggest that due process error in putting an incompetent defendant to trial is necessarily
          subject to a constitutional harm analysis. Although at least one court has held such error to be “structural,” Mondragon, supra,
          at 942–43, neither the United States Supreme Court nor this Court has yet declared whether the due process violation of trying
          an incompetent defendant constitutes the type of constitutional error, such as those enumerated most recently in United States v.
          Gonzalez–Lopez, 548 U.S. 140, 148–49, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), that is not susceptible to a harm analysis. We
          have no occasion to decide that question today. We simply point out that, if on remand the appellant in this case should indeed
          be found to be incompetent to stand trial, it is not hard to see how his incompetency had an obviously deleterious impact on the
          conduct of his trial, and particularly, his exclusive decision whether or not to testify.
41     See note 34, ante.




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42     See George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31:81, at 89–
       90 & n. 10 (3rd ed.2011) (citing, e.g., Torres v. State, 593 S.W.2d 717, 719 (Tex.Crim.App.1980) (remanding to trial court to decide,
       inter alia, whether “a nunc pro tunc determination of appellant's competency is not possible”); Ex parte McKenzie, 582 S.W.2d 153,
       155 (Tex.Crim.App.1979) (remanding case to the trial court to “determine if it is possible to conduct a nunc pro tunc competency
       hearing and, if it is, to hold such a hearing” under the then-extant competency-to-stand-trial statute); Ex parte Winfrey, 581 S.W.2d
       698, 699 (Tex.Crim.App.1979) (holding that the original competency hearing suffered from a flawed jury instruction, this Court
       remanded to the trial court for a determination whether, inter alia, a retrospective competency hearing was feasible)).
43     TEX.CODE CRIM. PROC. ch. 46B, subch. C.
44     This Court has sometimes disposed of other appellate points of error on original submission before remanding a cause for a
       retrospective competency determination. E.g., Brandon v. State, 599 S.W.2d 567, 574 (Tex.Crim.App.1979) (opinion on original
       submission); Barber v. State, 737 S.W.2d 824, 829 (Tex.Crim.App.1987). Three of the appellant's remaining points of error in this
       case, however, involve the issue of whether he should have been allowed to represent himself at various points at trial. See note
       13, ante. The ultimate resolution of the issue of his competency to stand trial may prove to have some bearing on these points of
       error. See Indiana v. Edwards, 554 U.S. 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (“[T]he Constitution permits States to
       insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental
       illness to the point where they are not competent to conduct trial proceedings by themselves.”). We therefore believe that resolution
       of these self-representation claims, if necessary, would best await our opinion after remand. The appellant's remaining points of error
       involve claims that the State exercised certain peremptory challenges to discriminate against African–American veniremen and that
       the trial court erred in failing to bench warrant the appellant from the penitentiary to assure his attendance at the motion for new
       trial hearing. The resolution of these claims also may prove unnecessary. In order to avoid resolving the appellant's points of error
       piecemeal—some now and some later—we will abstain from addressing any of them unless and until it should become necessary
       to do so in our opinion after remand.
1      TEX.CODE CRIM. PROC. art. 46B.003(a).
2      See Panetti v. Quarterman, 551 U.S. 930, 962, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“Expert evidence may clarify the extent to
       which severe delusions may render a subject's perception of reality so distorted that he should be deemed incompetent.”).


End of Document                                                     © 2014 Thomson Reuters. No claim to original U.S. Government Works.




               © 2014 Thomson Reuters. No claim to original U.S. Government Works.                                                       20
Exhibit
  B
                                                                1




 1                        REPORTER'S RECORD
                        VOLUME 1 OF 1 VOLUME
 2               TRIAL COURT CAUSE NO. 10-DCR-054233

 3   THE STATE OF TEXAS          ) IN THE DISTRICT COURT
                                 )
 4   vs.                         ) FORT BEND COUNTY, TEXAS
                                 )
 5   ALBERT JAMES TURNER         ) 268TH JUDICIAL DISTRICT

 6
 7

 8          _____________________________________________

 9            DETERMINATION OF RETROSPECTIVE COMPETENCY
            _____________________________________________
10

11

12         On May 30, 2014, the following proceedings came on
13   to be held in the above-titled and numbered cause before

14   the Honorable Brady G. Elliott, Judge Presiding, held in
15   Richmond, Fort Bend County, Texas.
16         Proceedings reported by computerized stenotype

17   machine.
18

19

20
21

22
23

24

25
                                                   2




 1                         APPEARANCES
 2   MR. FRED FELCMAN
     MS. GAIL MCCONNELL
 3   MS. LESLEIGH SAUNDERS
     FORT BEND COUNTY DISTRICT ATTORNEY'S OFFICE
 4   301 JACKSON
     RICHMOND, TEXAS 77469
 5   Counsel for The State of Texas

 6   MR. RICHARD A. MORROW
     SBOT NO. 14542400
 7   LOCKE LORD, L.L.P.
     600 CONGRESS AVENUE, SUITE 2200
 8   AUSTIN, TEXAS 78701
     Telephone: 512.305.4709
 9   Counsel for Defendant
10   MR. JAMES RYTTING
     SBOT NO. 24002883
11   Hilder & Associates
     819 Lovett Boulevard
12   Houston, Texas 77006
     Telephone: 713.655.9111
13   Writ Counsel for Defendant

14
15

16

17
18

19

20
21

22
23

24

25
                                                                 3




 1
 2                           VOLUME 1

 3          DETERMINATION OF RETROSPECTIVE COMPETENCY

 4   May 30, 2014
                                                     PAGE VOL.
 5   Proceedings Commence .............................. 4  1

 6   Announcements ..................................... 4   1
 7   Ruling of the Court .............................. 16   1
 8   Reporter's Certificate ........................... 19   1

 9
10

11

12
13

14
15

16

17
18

19

20
21

22
23

24

25
                                                                  4




 1                            PROCEEDINGS
 2                 THE COURT:     This is in the matter of The

 3   State of Texas vs. Albert James Turner, No. 54233.

 4                 If you'll make your announcements, please.
 5                 MR. FELCMAN:     Fred Felcman for The State

 6   of Texas, Judge.
 7                 MR. MORROW:     Robert Morrow for the
 8   defendant, Mr. Turner; and Aisha Khan is with me this

 9   morning, your Honor.
10                 THE COURT:     Mr. Morrow, I noticed in the

11   files, the papers in the file, that you've entered your

12   appearance as lead attorney for Mr. Turner at this
13   stage.

14                 MR. MORROW:     I have, your Honor.     I've
15   openly discussed that.
16                 THE COURT:     Okay.   Very good.

17                 The purpose of this hearing is to
18   determine the necessity of a -- or the necessity and
19   feasibility of a retrospective competency hearing, and

20   you've been joined by counsel for -- who's handling the
21   writ.

22                 Do you want to make your announcements, if
23   you're going to participate?
24                 MR. RYTTING:     Yes, James Rytting here for

25   Mr. Albert James Turner.
                                                                 5




 1                 THE COURT:    All right.   The way this has
 2   come down, as I've read the opinion of the Court of

 3   Criminal Appeals, it almost throws this on my lap to

 4   determine the feasibility; and I am interpreting that to
 5   ask for help from counsel who's best positioned to do so

 6   to argue the necessity -- Well, not necessity.     The
 7   Court of Criminal Appeals has already ordered the
 8   necessity of it, but the feasibility and the method by

 9   which we will accomplish that task, so I -- Since both
10   of you are basically in the same position, I believe, I

11   don't know who's the lead in this or not; but using

12   normal procedure, since it's the burden of the defendant
13   to raise competency, I believe that burden still rests

14   with the defense, so I'll proceed with you and
15   Mr. Morrow and let you lead off on this issue.
16                 MR. MORROW:    Thank you, Judge.

17                 Judge, I did want to mention to the Court
18   that Ms. Amy Martin has put just a tremendous amount of
19   work in this case and would be here with me this

20   morning, but she lost her dad about a week ago, and the
21   funeral is actually right now.

22                 THE COURT:    I'm sorry to hear that.
23                 MR. MORROW:    Yes, sir, and I apologize.
24   And, of course, she, except for that extraordinary

25   circumstance, would be here so -- and I hope she will be
                                                                6




 1   joining us later on in the litigation as we continue.
 2                 So, Judge, we believe that there's a

 3   threshold finding that the Court has to deal with which

 4   is whether, as you mentioned, there's the feasibility of
 5   having this hearing; and we think before that, we're

 6   going to ask the Court and we prepared a motion this
 7   morning to let us have an expert to determine whether
 8   Mr. Turner is competent now to proceed.

 9                 And the Green case, which I'll share with
10   the Court, with the prosecutors, 264 S.W.3d 261, out of

11   the San Antonio Court of Appeals, dealt with a situation

12   that's similar to ours, we believe, where the defendant
13   in that case was incompetent, had been incompetent; and

14   in the case, they were determining whether or not they
15   could do a retrospective competency hearing; and the
16   Court in that case found that because of the continued

17   incompetency of the defendant, it was not practical to
18   do so.
19                 So we believe the best way to proceed

20   right now would be to let us have an expert examine
21   Mr. Turner for his present competency and then put that

22   in front of the Court so you can have that to consider
23   before deciding whether you could go forward; that way,
24   we'd have an up-to-date, you know, opinion about his

25   state, and you'd be able to make a better decision about
                                                                   7




 1   whether it's possible to have this hearing that the
 2   Court has asked you to consider.

 3                 THE COURT:     Mr. Felcman, your response.

 4                 MR. FELCMAN:    I appreciate Mr. Morrow's
 5   giving me the case; I really do.

 6                 This is a very unusual circumstance, okay.
 7   We have a 5/4 decision.    The five, in reaching a
 8   decision in this, use a nonsecular reasoning, circular

 9   logic, sort of bypass abusive discretion, and then
10   ignore certain portions of the law; and then they tell

11   you, make a decision whether you can have a retroactive

12   hearing on this matter.    Never do they -- Never do they
13   put in the -- in their findings that you will be unable

14   to make a retroactive hearing.
15                 Now, I bring that to the attention of the
16   Court because the five people who wrote this should know

17   what the circumstances are.     In this particular case,
18   you've already had several experts look at the defendant
19   and all said he was competent.     Or they'd say they

20   couldn't determine it because he didn't cooperate with
21   them.

22                 THE COURT:     I think that's a more accurate
23   rendition of their findings is that they're unable to
24   make a decision because Mr. Turner will not cooperate

25   with the process.
                                                                   8




 1                 MR. FELCMAN:    Actually, some of them did
 2   find him competent.   But I understand; you're correct.

 3                 THE COURT:     But that is a finding that

 4   we've always followed in the law of competency that if
 5   the person won't cooperate and won't participate, they

 6   are to be determined to be competent.
 7                 MR. FELCMAN:    That's correct.
 8                 THE COURT:     Which is -- I guess that's

 9   what's got in my crawl about this whole matter is that
10   following that rule of law, I get this returned to me.

11                 MR. FELCMAN:    And actually if you read it

12   over, they actually go ahead and say:     "Because the
13   doctor couldn't decide whether he's competent, we must

14   presume he's incompetent."    Therefore, I disagree with
15   the opinion wholeheartedly; but that doesn't let you off
16   the hook.

17                 THE COURT:     Well, did they find that if he
18   didn't participate, then he is incompetent?
19                 MR. FELCMAN:    They actually have a section

20   in there because the doctor couldn't have enough
21   information to determine whether he was competent or

22   not, there's not evidence that he is competent;
23   therefore, they sort of switched the burden of proof at
24   one point in time in the opinions.

25                 THE COURT:     So they have changed the whole
                                                                         9




 1   body of law --
 2                    MR. FELCMAN:     They've changed the

 3   standard.

 4                    But that's not Mr. Morrow's fault,
 5   whatever.    He's just in here arguing his point.       I

 6   believe that the feasibility of this is quite easily
 7   done.   The only evidence you will actually have on this
 8   matter is --

 9                    THE COURT:     Well, let's talk about his
10   request first that he -- we need to bring him down and

11   determine his competency presently.

12                    MR. FELCMAN:     That's correct, Judge.      And
13   the cases he cited is actually correct.         He cites you

14   correctly.     It doesn't give any specifics on it.
15                    MR. MORROW:     May I approach?
16                    MR. FELCMAN:     Yeah, sure.   Give it to him.

17                    He doesn't give you any specifics about
18   what was the scenario on this one.         It doesn't say -- I
19   don't know if it says anything about the reason we're

20   having this is because he wasn't cooperating with his
21   counsel.

22                    Did it say anything like that in there
23   specifically?
24                    MR. MORROW:     No.   No, I don't think it

25   addresses cooperation that I remember.
                                                                   10




 1                  MR. FELCMAN:    And that's what I think is
 2   the key on this particular case.     We're just here

 3   because the defendant doesn't want to cooperate, all

 4   right.   And even in the opinion, they say he meets it.
 5   We all know nobody's argued that he doesn't have a

 6   rational understanding of what's going on here.        All
 7   we're dealing with here is his ability to cooperate with
 8   defense counsel.     That's the only issue we're really

 9   dealing with here.     This case could be pertinent.     On
10   the other hand, I don't think it is under the scenario

11   that we have right now.

12                  If he has changed, if something comes up
13   where the -- I guess you could do it if the psychiatrist

14   comes up and he has now got a mental illness, maybe that
15   would be something you would need to address; but I
16   don't think we have -- Do we have anything at all on the

17   record that he's got a new mental illness, or is it
18   basically the same thing as always, he doesn't want to
19   cooperate with anybody?

20                  MR. MORROW:    No, I think even Dr. Alexrad
21   and some of the other doctors mentioned a mental

22   illness; and if I could address Fred's point briefly,
23   Judge, we argue really that this vexation that he won't
24   cooperate is really the best evidence of his mental

25   illness; and the trial itself was so -- Judge, you
                                                                     11




 1   observed that that was so vividly illustrated.        This
 2   isn't someone that's just, you know, hardheaded.        This

 3   is someone whose mental illness, whose fixed delusion

 4   that we are all conspiring to kill him has kept him from
 5   cooperating.

 6                    And when you look at the T.D.C. records,
 7   it's consistent throughout his records.        He won't sign
 8   things; he won't participate in any way, and it's --

 9   That's the mental illness that's expressing itself that
10   makes him incompetent, so while it's extremely

11   frustrating to deal with him, that is his illness, so we

12   ask that we be able to bring that more forcibly to the
13   Court and more vividly to the Court so that you could

14   decide whether you can have this hearing or not.
15                    THE COURT:    Okay.   This is part of what's
16   bothering me about -- The defense has made the request

17   that he be brought in to determine current competency
18   several times.
19                    MR. MORROW:    Yes, sir.

20                    THE COURT:    But how does this relate to
21   the Trial on the Merits of the case which is what

22   brought us to this point?       I made an explicit finding
23   during the trial that he was competent by my
24   observations.     Now, there's room for disagreement there;

25   but at least I'm the one that got to see him for the
                                                                  12




 1   several weeks that we sat through that.
 2                 Based upon the professionals' examination,

 3   they could not reach a decision or they reached a

 4   decision finding him competent.   We're focused on the
 5   Trial on the Merits which brought this issue before the

 6   Court of Criminal Appeals, which was to determine
 7   whether he was competent during the trial.     How is
 8   determining his competency now going to impact a

 9   decision that I would have to make and the Court of
10   Criminal Appeals would have to make in the end as it

11   relates to his competency at the time of trial?     I guess

12   that's the confusing point about your request.
13                 MR. MORROW:   Judge, if I believe that due

14   process requires that before this -- you can make the
15   next determination, Is this feasible, we have to have a
16   client that can participate to some degree.     If we show

17   he can't participate, can't aid his lawyers, then the
18   answer to the question is there for you, that it's not
19   feasible to go forward; and that will end the inquiry.

20                 Judge, I was joking earlier about the
21   civil proceeding.   I'm just focusing on the remand and

22   abatement for the Court of Criminal Appeals.     The rest
23   of it's just too much to take in at one time, so I'm
24   looking at what did they ask you to do, what did they

25   ask Judge Elliott to do, and that is to decide, Is it
                                                                   13




 1   feasible to have a retrospective competency hearing,
 2   and, if so, how are we going to do that.

 3                  We believe that we need to have this

 4   examination to ensure due process for Mr. Turner so that
 5   before you make that decision, you know whether or not

 6   he's competent; and if he's not, of course, we're going
 7   to argue it's not feasible to go forward.
 8                  THE COURT:     Okay.   Yes, sir.

 9                  MR. FELCMAN:     I appreciate his argument,
10   but that also validates why it is feasible to have a

11   retroactive hearing.    This man will not cooperate.       It's

12   just that simple.   He won't change his stance on that.
13                  The defense of the defendant during the

14   trial, it's actually now evident why he may not have
15   wanted to cooperate.    That's what the Court did in its
16   decision about Pat McCann's -- What was his ultimate

17   defense of the defendant?      And when you read over the
18   dissent, they look at it and say, We understand why he
19   wasn't cooperating with the defense.       Look what the

20   defense was.   Look at the things they did when he said
21   he didn't want them to do that.

22                  We also will have the testimony, of
23   course, things that will aid the Court in making this
24   feasibility -- I mean, making this decision or the jury

25   making this decision.   His relationship with the family
                                                                  14




 1   members, all the things that occurred during the trial
 2   make it far more feasible to have a retroactive

 3   competency hearing that ever could occur.

 4                 Now, him having examined, Mr. Morrow's not
 5   trying to trick the Court.     It's in there; but I believe

 6   in the long run, it will not have any bearing whatsoever
 7   about his retroactive -- or what his competency was back
 8   then.

 9                 THE COURT:     Well, I understand the due
10   process argument you're making, that it's difficult --

11   Well, it's clear that if there's a Trial on the Merits

12   on any definitive issue, the defendant has a right to
13   not only be there but to participate in that process;

14   and if we, in fact, have a retrospective competency
15   hearing, it's important that he be here, No. 1, and,
16   No. 2, able to participate.

17                 I have some doubts in my mind whether
18   Mr. Turner will change the process that he has used
19   throughout this matter, but that's in the future.     I

20   can't read that crystal ball yet.
21                 MR. MORROW:     May I speak to that briefly,

22   Judge, before you move on?
23                 THE COURT:     Yes, sir.
24                 MR. MORROW:     Judge, it's been a long time

25   since someone's approached him to examine him, years
                                                                   15




 1   now; and we're in a different posture.      And I may be the
 2   ridiculous optimist in the world; but I believe if we

 3   can talk to him now, which would require him to come

 4   back to Fort Bend County, and explain the posture of
 5   this case and then present him with a disinterested

 6   expert, someone that's not -- that he's not seen before
 7   that's part of the conspiracy -- You know, I'm not
 8   saying we can cure him.   It may get better.     But I just

 9   want that chance, Judge; and I think that's what due
10   process is, is to bring him back now in 2014 and say,

11   "Mr. Turner, the situation has changed.      Here's what the

12   circumstances are, and you need to participate with this
13   doctor."

14                 I think -- You know, I just want that
15   chance, Judge; and I think that's what due process
16   requires; and we would ask the Court, with all due

17   respect, to let us have that opportunity.
18                 MR. FELCMAN:   Oh, I agree.     Why doesn't
19   he go talk to him?   I'm more, You can go talk to him,

20   Counsel, and see what he says.   This is going to be a
21   Catch-22 with them; and whatever ends up finding, I will

22   be able to use it to sustain why the feasibility of a
23   retrospective hearing is even more --
24                 Mr. Morrow, you're correct.      He ought to

25   be able to talk to his client, but that doesn't have
                                                                      16




 1   anything to do with his competency back then.
 2                    THE COURT:     Let me read this Green case

 3   real quick.

 4                    MR. FELCMAN:     Yeah.
 5                    THE COURT:     All right.   I think out of an

 6   abundance of caution, I'm going to grant the defendant's
 7   request to have a current competency examination
 8   performed on Mr. Turner.        Because this is a heavily

 9   contested matter, what I'm going to order is that the
10   defense and the State each provide their own expert to

11   examine Mr. Turner to determine his present competency.

12                    I will order a -- bench warrant him to
13   Fort Bend County, and I want this done as rapidly as

14   possible.     We've delayed this matter quite a bit, and we
15   need to move forward, so submit your names for your
16   experts to the Court.     I will order their examination of

17   Mr. Turner; and if you'll prepare a bench warrant today,
18   Mr. Felcman, I'll submit that order.
19                    MR. MORROW:     May I approach with this

20   motion, Judge?
21                    THE COURT:     Yes.

22                    MR. FELCMAN:     Does anybody have a
23   suggestion of exactly what they're supposed to be
24   looking for regarding his competency?         Because this is

25   not a trial setting, this is not a defensible issue, is
                                                                     17




 1   it going to be the same standard, or is it going to be
 2   something different?

 3                    THE COURT:     It's going to be the same

 4   standard, competency --
 5                    MR. FELCMAN:    Same.

 6                    THE COURT:     Because the request is a due
 7   process request to assist counsel; and, therefore, it
 8   would be the same standard as we use for the trial.           And

 9   I think that would -- In the abundance of caution, I
10   think that would be the best way to proceed; and we can

11   get this done at the earliest convenience; and dependent

12   upon their findings, we'll hold a hearing very shortly
13   thereafter to proceed to the feasibility part of this

14   issue.
15                    MR. FELCMAN:    Now, the five judges up
16   there used that against you.        You said, "Abundance of

17   caution."     They said that that meant that you had a good
18   faith doubt about the defendant's competency in this
19   matter.     They used that, even though you multiple times

20   said, Listen, I'm just doing this out of an abundance of
21   caution.

22                    THE COURT:     The abundance of caution is to
23   make a full record for the Court of Criminal Appeals to
24   have before them.     I have no doubt in my mind that he

25   was competent; but on the other hand, this is a question
                                                                   18




 1   that's been raised by nine folks smarter than I am, or
 2   at least five of them; and we're going to give them all

 3   the ammunition they can use.

 4                 MR. FELCMAN:     Thank you, Judge.
 5                 MR. MORROW:     Judge, can we approach off

 6   the docket -- off the record about schedules?
 7                 MR. FELCMAN:     One last thing, Judge.
 8                 THE REPORTER:     On the record?

 9                 MR. FELCMAN:     On the record, please, one
10   last thing.

11                 I know Mr. Morrow's aware of it.        There

12   are specific requirements for the qualifications of the
13   psychiatrist, okay, so that has to be met on those.

14                 THE COURT:     Off the record, Mindy.
15                 THE REPORTER:     Yes, sir.
16

17
18

19

20
21

22
23

24

25
                                                               19




 1   THE STATE OF TEXAS   §
 2   COUNTY OF FORT BEND §

 3       I, Mindy R. Hall, official court reporter in and for

 4   the 268th District Court of Fort Bend County, State of
 5   Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all
 7   portions of evidence and other proceedings requested in

 8   writing by counsel for the parties to be included in

 9   this volume of the Reporter's Record in the above-styled
10   and numbered cause, all of which occurred in open court

11   or in chambers and were reported by me.

12       I further certify that this Reporter's Record of the
13   proceedings truly and correctly reflects the exhibits,

14   if any, offered by the respective parties.
15       I further certify that the total cost for the

16   preparation of this Reporter's Record is $127.50 and

17   will be paid by Fort Bend County.
18       WITNESS MY OFFICIAL HAND this, the 18th day of

19   August, 2014.

20
                              /s/Mindy R. Hall______________
21                            Mindy R. Hall, CSR
                              Texas CSR 8107
22                            Official Court Reporter
                              301 Jackson
23                            Richmond, Texas 77469
                              Telephone: 281.341.8611
24                            Expiration: 12/31/2014

25
                                           all [13] 5/1 7/19 10/3 10/5 10/6 10/16
$                                           11/4 14/1 15/16 16/5 18/2 19/6 19/10     C
$127.50 [1] 19/16                          almost [1] 5/3                           came [1] 1/12
                                           already [2] 5/7 7/18                     can [11] 6/22 7/11 11/14 12/14 12/16
/                                          also [2] 13/10 13/22                      15/3 15/8 15/19 17/10 18/3 18/5
/s/Mindy [1] 19/20                         always [2] 8/4 10/18                     can't [3] 12/17 12/17 14/20
                                           am [2] 5/4 18/1                          case [12] 5/19 6/9 6/13 6/14 6/16 7/5
0                                          ammunition [1] 18/3                       7/17 10/2 10/9 11/21 15/5 16/2
054233 [1] 1/2                             amount [1] 5/18                          cases [1] 9/13
                                           Amy [1] 5/18                             Catch [1] 15/21
1                                          announcements [2] 4/4 4/22               Catch-22 [1] 15/21
10-DCR-054233 [1] 1/2                      answer [1] 12/18                         cause [3] 1/2 1/13 19/10
12/31/2014 [1] 19/24                       Antonio [1] 6/11                         caution [5] 16/6 17/9 17/17 17/21 17/22
14542400 [1] 2/6                           any [6] 9/14 9/17 11/8 14/6 14/12 19/14  certain [1] 7/10
18th [1] 19/18                             anybody [2] 10/19 16/22                  certify [3] 19/5 19/12 19/15
                                           anything [4] 9/19 9/22 10/16 16/1        chambers [1] 19/11
2                                          apologize [1] 5/23                       chance [2] 15/9 15/15
2014 [5] 1/12 3/4 15/10 19/19 19/24        Appeals [7] 5/3 5/7 6/11 12/6 12/10      change [2] 13/12 14/18
22 [1] 15/21                                12/22 17/23                             changed [4] 8/25 9/2 10/12 15/11
2200 [1] 2/7                               appearance [1] 4/12                      circular [1] 7/8
24002883 [1] 2/10                          APPEARANCES [1] 2/1                      circumstance [2] 5/25 7/6
261 [1] 6/10                               appreciate [2] 7/4 13/9                  circumstances [2] 7/17 15/12
264 [1] 6/10                               approach [3] 9/15 16/19 18/5             cited [1] 9/13
268TH [2] 1/5 19/4                         approached [1] 14/25                     cites [1] 9/13
281.341.8611 [1] 19/23                     are [7] 5/10 7/17 8/6 11/4 13/2 15/12    civil [1] 12/21
                                            18/12                                   clear [1] 14/11
3                                          argue [3] 5/6 10/23 13/7                 client [2] 12/16 15/25
30 [2] 1/12 3/4                            argued [1] 10/5                          come [2] 5/2 15/3
301 [2] 2/4 19/22                          arguing [1] 9/5                          comes [2] 10/12 10/14
                                           argument [2] 13/9 14/10                  competency [21]
5                                          as [9] 4/12 5/2 6/1 6/4 10/18 12/10      competent [12] 6/8 7/19 8/2 8/6 8/13
5/4 [1] 7/7                                 16/13 16/13 17/8                         8/21 8/22 11/23 12/4 12/7 13/6 17/25
512.305.4709 [1] 2/8                       ask [6] 5/5 6/6 11/12 12/24 12/25 15/16  computerized [1] 1/16
54233 [1] 4/3                              asked [1] 7/2                            confusing [1] 12/12
                                           assist [1] 17/7                          CONGRESS [1] 2/7
6                                          Associates [1] 2/11                      consider [2] 6/22 7/2
600 [1] 2/7                                attention [1] 7/15                       consistent [1] 11/7
                                           attorney [1] 4/12                        conspiracy [1] 15/7
7                                          ATTORNEY'S [1] 2/3                       conspiring [1] 11/4
713.655.9111 [1] 2/12                      August [1] 19/19                         contains [1] 19/6
77006 [1] 2/12                             AUSTIN [1] 2/8                           contested [1] 16/9
77469 [2] 2/4 19/23                        AVENUE [1] 2/7                           continue [1] 6/1
78701 [1] 2/8                              aware [1] 18/11                          continued [1] 6/16
                                                                                    convenience [1] 17/11
8                                          B                                        cooperate [9] 7/20 7/24 8/5 10/3 10/7
8107 [1] 19/21                             back [4] 14/7 15/4 15/10 16/1             10/19 10/24 13/11 13/15
819 [1] 2/11                               ball [1] 14/20                           cooperating [3] 9/20 11/5 13/19
                                           Based [1] 12/2                           cooperation [1] 9/25
A                                          basically [2] 5/10 10/18                 correct [6] 8/2 8/7 9/12 9/13 15/24 19/6
abatement [1] 12/22                        be [28]                                  correctly [2] 9/14 19/13
ability [1] 10/7                           bearing [1] 14/6                         cost [1] 19/15
able [5] 6/25 11/12 14/16 15/22 15/25      because [11] 6/16 7/16 7/20 7/24 8/12    could [8] 6/15 6/23 10/9 10/13 10/22
about [14] 5/20 6/24 6/25 8/9 9/9 9/17     8/20 9/20 10/3 16/8 16/24 17/6            11/13 12/3 14/3
 9/19 11/16 12/12 12/20 13/16 14/7         been [4] 4/20 6/13 14/24 18/1            couldn't [3] 7/20 8/13 8/20
 17/18 18/6                                before [9] 1/13 6/5 6/23 12/5 12/14 13/5 counsel [10] 2/5 2/9 2/13 4/20 5/5 9/21
above [3] 1/13 19/5 19/9                   14/22 15/6 17/24                          10/8 15/20 17/7 19/8
above-styled [1] 19/9                      believe [10] 5/10 5/13 6/2 6/12 6/19 9/6 COUNTY [8] 1/4 1/15 2/3 15/4 16/13
above-titled [1] 1/13                      12/13 13/3 14/5 15/2                      19/2 19/4 19/17
abundance [5] 16/6 17/9 17/16 17/20        bench [2] 16/12 16/17                    course [3] 5/24 13/6 13/23
 17/22                                     BEND [8] 1/4 1/15 2/3 15/4 16/13 19/2 court [28]
abusive [1] 7/9                            19/4 19/17                               crawl [1] 8/9
accomplish [1] 5/9                         best [4] 5/5 6/19 10/24 17/10            Criminal [6] 5/3 5/7 12/6 12/10 12/22
accurate [1] 7/22                          better [2] 6/25 15/8                      17/23
actually [8] 5/21 8/1 8/11 8/12 8/19 9/7   bit [1] 16/14                            crystal [1] 14/20
 9/13 13/14                                body [1] 9/1                             CSR [2] 19/21 19/21
address [2] 10/15 10/22                    both [1] 5/9                             cure [1] 15/8
addresses [1] 9/25                         bothering [1] 11/16                      current [2] 11/17 16/7
against [1] 17/16                          Boulevard [1] 2/11
ago [1] 5/20                               Brady [1] 1/14                           D
agree [1] 15/18                            briefly [2] 10/22 14/21                  dad [1] 5/20
ahead [1] 8/12                             bring [4] 7/15 9/10 11/12 15/10          date [1] 6/24
aid [2] 12/17 13/23                        brought [3] 11/17 11/22 12/5             day [1] 19/18
Aisha [1] 4/8                              burden [3] 5/12 5/13 8/23                DCR [1] 1/2
ALBERT [3] 1/5 4/3 4/25                    bypass [1] 7/9                           deal [2] 6/3 11/11
Alexrad [1] 10/20                                                                   dealing [2] 10/7 10/9
                                         exhibits [1] 19/13                         he go [1] 15/19
D                                        expert [4] 6/7 6/20 15/6 16/10             he's [7] 8/13 8/14 9/5 10/17 13/6 13/6
dealt [1] 6/11                           experts [2] 7/18 16/16                      15/6
decide [3] 8/13 11/14 12/25              Expiration [1] 19/24                       hear [1] 5/22
deciding [1] 6/23                        explain [1] 15/4                           hearing [14] 4/17 4/19 6/5 6/15 7/1 7/12
decision [12] 6/25 7/7 7/8 7/11 7/24     explicit [1] 11/22                          7/14 11/14 13/1 13/11 14/3 14/15 15/23
 12/3 12/4 12/9 13/5 13/16 13/24 13/25   expressing [1] 11/9                         17/12
defendant [11] 2/9 2/13 4/8 5/12 6/12    extraordinary [1] 5/24                     heavily [1] 16/8
 6/17 7/18 10/3 13/13 13/17 14/12        extremely [1] 11/10                        held [2] 1/13 1/14
defendant's [2] 16/6 17/18                                                          help [1] 5/5
defense [8] 5/14 10/8 11/16 13/13 13/17 F                                           her [1] 5/20
 13/19 13/20 16/10                       fact [1] 14/14                             here [9] 4/24 5/19 5/25 9/5 10/2 10/6
defensible [1] 16/25                     faith [1] 17/18                             10/7 10/9 14/15
definitive [1] 14/12                     family [1] 13/25                           Here's [1] 15/11
degree [1] 12/16                         far [1] 14/2                               hereby [1] 19/5
delayed [1] 16/14                        fault [1] 9/4                              Hilder [1] 2/11
delusion [1] 11/3                        feasibility [8] 4/19 5/4 5/8 6/4 9/6 13/24 him [20]
dependent [1] 17/11                       15/22 17/13                               his [23]
determination [3] 1/9 3/3 12/15          feasible [6] 12/15 12/19 13/1 13/7 13/10 hold [1] 17/12
determine [9] 4/18 5/4 6/7 7/20 8/21      14/2                                      Honor [2] 4/9 4/14
 9/11 11/17 12/6 16/11                   FELCMAN [4] 2/2 4/5 7/3 16/18              Honorable [1] 1/14
determined [1] 8/6                       file [1] 4/11                              hook [1] 8/16
determining [2] 6/14 12/8                files [1] 4/11                             hope [1] 5/25
did [8] 5/17 8/1 8/17 9/22 12/24 12/24   find [2] 8/2 8/17                          Houston [1] 2/12
 13/15 13/20                             finding [5] 6/3 8/3 11/22 12/4 15/21       how [3] 11/20 12/7 13/2
didn't [3] 7/20 8/18 13/21               findings [3] 7/13 7/23 17/12
different [2] 15/1 17/2                  first [1] 9/10                             I
difficult [1] 14/10                      five [4] 7/7 7/16 17/15 18/2               I'll [3] 5/14 6/9 16/18
disagree [1] 8/14                        fixed [1] 11/3                             I'm [9] 5/22 11/25 12/21 12/23 15/7
disagreement [1] 11/24                   focused [1] 12/4                            15/19 16/6 16/9 17/20
discretion [1] 7/9                       focusing [1] 12/21                         I've [2] 4/14 5/2
discussed [1] 4/15                       folks [1] 18/1                             ignore [1] 7/10
disinterested [1] 15/5                   followed [1] 8/4                           illness [7] 10/14 10/17 10/22 10/25 11/3
dissent [1] 13/18                        following [2] 1/12 8/10                     11/9 11/11
DISTRICT [4] 1/3 1/5 2/3 19/4            forcibly [1] 11/12                         illustrated [1] 11/1
do [15] 4/22 5/5 6/15 6/18 7/5 7/12 7/12 foregoing [1] 19/5                         impact [1] 12/8
 10/13 10/16 12/24 12/25 13/2 13/21      FORT [8] 1/4 1/15 2/3 15/4 16/13 19/2      important [1] 14/15
 16/1 19/5                                19/4 19/17                                included [1] 19/8
docket [1] 18/6                          forward [4] 6/23 12/19 13/7 16/15          incompetency [1] 6/17
doctor [3] 8/13 8/20 15/13               found [1] 6/16                             incompetent [5] 6/13 6/13 8/14 8/18
doctors [1] 10/21                        FRED [2] 2/2 4/5                            11/10
does [2] 11/20 16/22                     Fred's [1] 10/22                           information [1] 8/21
doesn't [9] 8/15 9/14 9/17 9/18 10/3     front [1] 6/22                             inquiry [1] 12/19
 10/5 10/18 15/18 15/25                  frustrating [1] 11/11                      interpreting [1] 5/4
doing [1] 17/20                          full [1] 17/23                             is [46]
don't [5] 5/11 9/19 9/24 10/10 10/16     funeral [1] 5/21                           isn't [1] 11/2
done [3] 9/7 16/13 17/11                 further [2] 19/12 19/15                    issue [6] 5/15 10/8 12/5 14/12 16/25
doubt [2] 17/18 17/24                    future [1] 14/19                            17/14
doubts [1] 14/17                                                                    it [28]
down [2] 5/2 9/10                        G                                          it's [16] 5/12 7/1 11/7 11/8 11/10 12/18
Dr [1] 10/20                             GAIL [1] 2/2                                12/23 13/7 13/11 13/14 14/5 14/10
due [7] 12/13 13/4 14/9 15/9 15/15       get [3] 8/10 15/8 17/11                     14/11 14/15 14/24 17/3
 15/16 17/6                              give [4] 9/14 9/16 9/17 18/2               its [1] 13/15
during [4] 11/23 12/7 13/13 14/1         giving [1] 7/5                             itself [2] 10/25 11/9
                                         go [6] 6/23 8/12 12/19 13/7 15/19 15/19
E                                        going [13] 4/23 6/6 10/6 12/8 13/2 13/6 J
each [1] 16/10                            15/20 16/6 16/9 17/1 17/1 17/3 18/2       JACKSON [2] 2/4 19/22
earlier [1] 12/20                        good [2] 4/16 17/17                        JAMES [5] 1/5 2/10 4/3 4/24 4/25
earliest [1] 17/11                       got [4] 8/9 10/14 10/17 11/25              joined [1] 4/20
easily [1] 9/6                           grant [1] 16/6                             joining [1] 6/1
Elliott [2] 1/14 12/25                   Green [2] 6/9 16/2                         joking [1] 12/20
end [2] 12/10 12/19                      guess [3] 8/8 10/13 12/11                  Judge [19] 1/14 4/6 5/16 5/17 6/2 9/12
ends [1] 15/21                                                                       10/23 10/25 12/13 12/20 12/25 14/22
enough [1] 8/20                          H                                           14/24 15/9 15/15 16/20 18/4 18/5 18/7
ensure [1] 13/4                          had [3] 6/13 7/18 17/17                    judges [1] 17/15
entered [1] 4/11                         Hall [3] 19/3 19/20 19/21                  JUDICIAL [1] 1/5
even [4] 10/4 10/20 15/23 17/19          hand [3] 10/10 17/25 19/18                 jury [1] 13/24
ever [1] 14/3                            handling [1] 4/20                          just [10] 5/18 9/5 10/2 11/2 12/21 12/23
evidence [4] 8/22 9/7 10/24 19/7         hardheaded [1] 11/2                         13/12 15/8 15/14 17/20
evident [1] 13/14                        has [13] 5/1 5/7 5/18 6/3 7/2 10/12
exactly [1] 16/23                         10/14 11/4 11/16 14/12 14/18 15/11        K
examination [4] 12/2 13/4 16/7 16/16      18/13                                     kept [1] 11/4
examine [3] 6/20 14/25 16/11             have [36]                                  key [1] 10/2
examined [1] 14/4                        having [3] 6/5 9/20 14/4                   Khan [1] 4/8
except [1] 5/24                          he [34]                                    kill [1] 11/4
                                        Mr. Turner [10] 4/12 6/8 6/21 7/24 13/4        positioned [1] 5/5
K                                       14/18 15/11 16/8 16/11 16/17                   possible [2] 7/1 16/14
know [10] 5/11 6/24 7/16 9/19 10/5 11/2 MS [2] 2/2 2/3                                 posture [2] 15/1 15/4
 13/5 15/7 15/14 18/11                  Ms. [1] 5/18                                   practical [1] 6/17
                                        Ms. Amy [1] 5/18                               preparation [1] 19/16
L                                       much [1] 12/23                                 prepare [1] 16/17
L.L.P [1] 2/7                           multiple [1] 17/19                             prepared [1] 6/6
lap [1] 5/3                             must [1] 8/13                                  present [3] 6/21 15/5 16/11
last [2] 18/7 18/10                     my [6] 5/3 8/9 11/23 14/17 17/24 19/18         presently [1] 9/11
later [1] 6/1                                                                          Presiding [1] 1/14
law [4] 7/10 8/4 8/10 9/1               N                                              presume [1] 8/14
lawyers [1] 12/17                       names [1] 16/15                                procedure [1] 5/12
lead [3] 4/12 5/11 5/15                 necessity [5] 4/18 4/18 5/6 5/6 5/8            proceed [5] 5/14 6/8 6/19 17/10 17/13
least [2] 11/25 18/2                    need [5] 9/10 10/15 13/3 15/12 16/15           proceeding [1] 12/21
LESLEIGH [1] 2/3                        Never [2] 7/12 7/12                            proceedings [5] 1/12 1/16 4/1 19/7
let [6] 5/15 6/7 6/20 8/15 15/17 16/2   new [1] 10/17                                  19/13
let's [1] 9/9                           next [1] 12/15                                 process [9] 7/25 12/14 13/4 14/10 14/13
like [1] 9/22                           nine [1] 18/1                                  14/18 15/10 15/15 17/7
Listen [1] 17/20                        no [10] 1/2 2/6 2/10 4/3 9/24 9/24 10/20       professionals' [1] 12/2
litigation [1] 6/1                      14/15 14/16 17/24                              proof [1] 8/23
LOCKE [1] 2/7                           nobody's [1] 10/5                              prosecutors [1] 6/10
logic [1] 7/9                           nonsecular [1] 7/8                             provide [1] 16/10
long [2] 14/6 14/24                     normal [1] 5/12                                psychiatrist [2] 10/13 18/13
look [5] 7/18 11/6 13/18 13/19 13/20    not [24]                                       purpose [1] 4/17
looking [2] 12/24 16/24                 noticed [1] 4/10                               put [3] 5/18 6/21 7/13
LORD [1] 2/7                            now [14] 5/21 6/8 6/20 7/15 10/11 10/14
lost [1] 5/20                           11/24 12/8 13/14 14/4 15/1 15/3 15/10          Q
Lovett [1] 2/11                         17/15                                          qualifications [1] 18/12
                                        numbered [2] 1/13 19/10                        question [2] 12/18 17/25
M                                                                                      quick [1] 16/3
machine [1] 1/17                            O                                          quite [2] 9/6 16/14
made [2] 11/16 11/22                        observations [1] 11/24
make [12] 4/4 4/22 6/25 7/11 7/14 7/24      observed [1] 11/1                          R
12/9 12/10 12/14 13/5 14/2 17/23            occur [1] 14/3                             raise [1] 5/13
makes [1] 11/10                             occurred [2] 14/1 19/10                    raised [1] 18/1
making [4] 13/23 13/24 13/25 14/10          off [5] 5/15 8/15 18/5 18/6 18/14          rapidly [1] 16/13
man [1] 13/11                               offered [1] 19/14                          rational [1] 10/6
Martin [1] 5/18                             OFFICE [1] 2/3                             reach [1] 12/3
matter [8] 4/2 7/12 8/9 9/8 14/19 16/9      official [3] 19/3 19/18 19/22              reached [1] 12/3
16/14 17/19                                 Oh [1] 15/18                               reaching [1] 7/7
may [8] 1/12 3/4 9/15 13/14 14/21 15/1      okay [5] 4/16 7/6 11/15 13/8 18/13         read [5] 5/2 8/11 13/17 14/20 16/2
15/8 16/19                                  one [6] 8/24 9/18 11/25 12/23 18/7 18/9    real [1] 16/3
maybe [1] 10/14                             only [3] 9/7 10/8 14/13                    really [4] 7/5 10/8 10/23 10/24
McCann's [1] 13/16                          open [1] 19/10                             reason [1] 9/19
MCCONNELL [1] 2/2                           openly [1] 4/15                            reasoning [1] 7/8
me [7] 4/8 5/19 7/5 8/10 11/16 16/2         opinion [4] 5/2 6/24 8/15 10/4             record [10] 1/1 10/17 17/23 18/6 18/8
19/11                                       opinions [1] 8/24                           18/9 18/14 19/9 19/12 19/16
mean [1] 13/24                              opportunity [1] 15/17                      records [2] 11/6 11/7
meant [1] 17/17                             optimist [1] 15/2                          reflects [1] 19/13
meets [1] 10/4                              order [4] 16/9 16/12 16/16 16/18           regarding [1] 16/24
members [1] 14/1                            ordered [1] 5/7                            relate [1] 11/20
mental [6] 10/14 10/17 10/21 10/24 11/3     other [4] 10/10 10/21 17/25 19/7           relates [1] 12/11
11/9                                        ought [1] 15/24                            relationship [1] 13/25
mention [1] 5/17                            ours [1] 6/12                              remand [1] 12/21
mentioned [2] 6/4 10/21                     out [3] 6/10 16/5 17/20                    remember [1] 9/25
Merits [3] 11/21 12/5 14/11                 over [2] 8/12 13/17                        rendition [1] 7/23
met [1] 18/13                               own [1] 16/10                              reported [2] 1/16 19/11
method [1] 5/8                                                                         reporter [2] 19/3 19/22
mind [2] 14/17 17/24                        P                                          REPORTER'S [4] 1/1 19/9 19/12 19/16
Mindy [4] 18/14 19/3 19/20 19/21            paid [1] 19/17                             request [6] 9/10 11/16 12/12 16/7 17/6
more [6] 7/22 11/12 11/13 14/2 15/19        papers [1] 4/11                             17/7
15/23                                       part [3] 11/15 15/7 17/13                  requested [1] 19/7
morning [3] 4/9 5/20 6/7                    participate [9] 4/23 8/5 8/18 11/8 12/16   require [1] 15/3
MORROW [5] 2/6 4/7 4/10 5/15 15/24          12/17 14/13 14/16 15/12                    requirements [1] 18/12
Morrow's [4] 7/4 9/4 14/4 18/11             particular [2] 7/17 10/2                   requires [2] 12/14 15/16
motion [2] 6/6 16/20                        parties [2] 19/8 19/14                     respect [1] 15/17
move [2] 14/22 16/15                        Pat [1] 13/16                              respective [1] 19/14
MR [6] 2/2 2/6 2/10 4/8 4/10 7/4            people [1] 7/16                            response [1] 7/3
Mr. [18] 4/12 4/25 5/15 6/8 6/21 7/3 7/24   performed [1] 16/8                         rest [1] 12/22
9/4 13/4 14/4 14/18 15/11 15/24 16/8        person [1] 8/5                             rests [1] 5/13
16/11 16/17 16/18 18/11                     pertinent [1] 10/9                         retroactive [5] 7/11 7/14 13/11 14/2 14/7
Mr. Albert [1] 4/25                         please [2] 4/4 18/9                        retrospective [7] 1/9 3/3 4/19 6/15 13/1
Mr. Felcman [2] 7/3 16/18                   point [5] 8/24 9/5 10/22 11/22 12/12        14/14 15/23
Mr. Morrow [2] 5/15 15/24                   portions [2] 7/10 19/7                     returned [1] 8/10
Mr. Morrow's [3] 9/4 14/4 18/11             position [1] 5/10                          RICHARD [1] 2/6
                                          talk [5] 9/9 15/3 15/19 15/19 15/25        vexation [1] 10/23
R                                         task [1] 5/9                               vividly [2] 11/1 11/13
Richmond [3] 1/15 2/4 19/23               Telephone [3] 2/8 2/12 19/23               volume [4] 1/1 1/1 3/2 19/9
ridiculous [1] 15/2                       tell [1] 7/10
right [7] 5/1 5/21 6/20 10/4 10/11 14/12 testimony [1] 13/22                         W
 16/5                                     TEXAS [13] 1/3 1/4 1/15 2/4 2/5 2/8 2/12   want [8] 4/22 5/17 10/3 10/18 13/21
Robert [1] 4/7                             4/3 4/6 19/1 19/5 19/21 19/23             15/9 15/14 16/13
room [1] 11/24                            than [1] 18/1                              wanted [1] 13/15
rule [1] 8/10                             Thank [2] 5/16 18/4                        warrant [2] 16/12 16/17
run [1] 14/6                              that [96]                                  was [15] 6/13 6/17 7/19 8/21 9/18 10/25
RYTTING [2] 2/10 4/24                     that's [19] 6/12 7/22 8/7 8/8 9/4 9/12     11/1 11/23 12/6 12/7 12/20 13/16 13/20
                                           10/1 10/8 11/2 11/9 11/9 12/12 13/15      14/7 17/25
S                                          14/19 15/6 15/7 15/9 15/15 18/1           wasn't [2] 9/20 13/19
S.W.3d [1] 6/10                           their [5] 7/13 7/23 16/10 16/16 17/12      way [5] 5/1 6/19 6/23 11/8 17/10
said [5] 7/19 13/20 17/16 17/17 17/20     them [7] 7/21 8/1 13/21 15/21 17/24        we [34]
same [6] 5/10 10/18 17/1 17/3 17/5 17/8 18/2 18/2                                    we'd [1] 6/24
San [1] 6/11                              then [8] 6/21 7/9 7/10 8/18 12/17 14/8     we'll [1] 17/12
sat [1] 12/1                               15/5 16/1                                 we're [9] 6/5 9/19 10/2 10/7 10/8 12/4
SAUNDERS [1] 2/3                          there [8] 8/20 9/22 11/24 12/18 14/5       13/6 15/1 18/2
say [7] 7/19 8/12 9/18 9/22 10/4 13/18     14/13 17/16 18/11                         we've [2] 8/4 16/14
 15/10                                    there's [5] 6/2 6/4 8/22 11/24 14/11       week [1] 5/20
saying [1] 15/8                           thereafter [1] 17/13                       weeks [1] 12/1
says [2] 9/19 15/20                       therefore [3] 8/14 8/23 17/7               Well [5] 5/6 8/17 9/9 14/9 14/11
SBOT [2] 2/6 2/10                         they [22]                                  were [2] 6/14 19/11
scenario [2] 9/18 10/10                   they'd [1] 7/19                            what [16] 7/17 9/18 10/1 11/21 12/24
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section [1] 8/19                          They've [1] 9/2                            15/11 15/15 15/20 16/9 16/23
see [2] 11/25 15/20                       thing [3] 10/18 18/7 18/10                 what's [3] 8/9 10/6 11/15
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share [1] 6/9                              17/10                                     where [2] 6/12 10/13
she [3] 5/20 5/24 5/25                    this [61]                                  whether [12] 6/4 6/7 6/14 6/23 7/1 7/11
shortly [1] 17/12                         those [1] 18/13                            8/13 8/21 11/14 12/7 13/5 14/17
should [1] 7/16                           though [1] 17/19                           which [9] 5/9 6/3 6/9 8/8 11/21 12/5
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 6/22 8/25 10/25 11/1 11/10 11/11 11/13 total [1] 19/15                              13/11 13/22 13/23 14/6 14/18 15/21
 12/23 13/2 13/4 16/15 18/13              transcription [1] 19/6                     16/12 16/16 19/17
some [4] 8/1 10/21 12/16 14/17            tremendous [1] 5/18                        WITNESS [1] 19/18
someone [3] 11/2 11/3 15/6                trial [12] 1/2 10/25 11/21 11/23 12/5      won't [6] 8/5 8/5 10/23 11/7 11/8 13/12
someone's [1] 14/25                        12/7 12/11 13/14 14/1 14/11 16/25 17/8    work [1] 5/19
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specifics [2] 9/14 9/17                    16/17
stage [1] 4/13                                                                       Y
stance [1] 13/12                          U                                          Yeah [2] 9/16 16/4
standard [4] 9/3 17/1 17/4 17/8           ultimate [1] 13/16                         years [1] 14/25
state [8] 1/3 2/5 4/3 4/5 6/25 16/10 19/1 unable [2] 7/13 7/23                       Yes [7] 4/24 5/23 11/19 13/8 14/23
 19/4                                     under [1] 10/10                             16/21 18/15
stenotype [1] 1/16                        understand [3] 8/2 13/18 14/9              yet [1] 14/20
still [1] 5/13                            understanding [1] 10/6                     you [41]
styled [1] 19/9                           unusual [1] 7/6                            you'd [1] 6/25
submit [2] 16/15 16/18                    up [5] 6/24 10/12 10/14 15/21 17/15        you'll [2] 4/4 16/17
suggestion [1] 16/23                      up-to-date [1] 6/24                        you're [4] 4/23 8/2 14/10 15/24
SUITE [1] 2/7                             upon [2] 12/2 17/12                        you've [3] 4/11 4/20 7/18
supposed [1] 16/23                        us [5] 6/1 6/7 6/20 11/22 15/17            your [9] 4/4 4/9 4/11 4/14 4/22 7/3 12/12
sure [1] 9/16                             use [4] 7/8 15/22 17/8 18/3                 16/15 16/15
sustain [1] 15/22                         used [3] 14/18 17/16 17/19
switched [1] 8/23                         using [1] 5/11
T                                        V
T.D.C [1] 11/6                           validates [1] 13/10
take [1] 12/23                           very [3] 4/16 7/6 17/12
Exhibit
  C
Exhibit
  D
Exhibit
  E
                                                                 1




 1                        REPORTER'S RECORD
                        VOLUME 1 OF 1 VOLUME
 2               TRIAL COURT CAUSE NO. 10-DCR-054233
                    APPELLATE CASE NO. AP-76,580
 3
     THE STATE OF TEXAS          ) IN THE DISTRICT COURT
 4                               )
     vs.                         ) FORT BEND COUNTY, TEXAS
 5                               )
     ALBERT JAMES TURNER         ) 268TH JUDICIAL DISTRICT
 6
 7

 8          _____________________________________________

 9                         MOTIONS HEARING
            _____________________________________________
10

11

12         On January 16, 2015, the following proceedings came
13   on to be held in the above-titled and numbered cause

14   before the Honorable Brady G. Elliott, Judge Presiding,
15   held in Richmond, Fort Bend County, Texas.
16         Proceedings reported by computerized stenotype

17   machine.
18

19

20
21

22
23

24

25
                                           2




 1                         APPEARANCES
 2   MR. FRED FELCMAN
     Texas Bar No. 06881500
 3   Assistant District Attorney
     MR. CHAD BRIDGES
 4   Texas Bar No. 00790369
     Assistant District Attorney
 5   MS. GAIL MCCONNELL
     MS. LESLEIGH MORTON
 6   301 Jackson
     Richmond, Texas 77469
 7   Telephone: 281.238.3230
     Counsel for The State of Texas
 8
     MS. AMY D. MARTIN
 9   Texas Bar No. 24041402
     Law Office of Amy Martin
10   202 Travis Street, Suite 300
     Houston, Texas 77002
11   Telephone: 713.320.3525
     Amymartinlaw@gmail.com
12   Mitigation Specialist for Defendant
13

14
15

16

17
18

19

20
21

22
23

24

25
                                                                  3




 1
 2                           VOLUME 1

 3                       Motions Hearing

 4   January 16, 2015
                                                     PAGE VOL.
 5   Announcements ..................................... 4  1

 6   Defense's Motion to strike Murray ................. 4    1
 7   Court's Ruling on Defendant's Motion   ............. 6   1
 8   Defendant's Motion to address current incompetency 6     1

 9   Court's Ruling on motion ......................... 12    1
10   Reporter's Certificate ........................... 17    1

11

12
13

14
15

16

17
18

19

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21

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23

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                                                                   4




 1                           PROCEEDINGS
 2                 THE COURT:     Okay.   We're here on the

 3   matter of The State of Texas vs. Albert James Turner,

 4   No. 54233.
 5                 Let me have your announcements, please.

 6                 MS. MARTIN:     Amy Martin for the defendant,
 7   Albert James Turner.
 8                 MR. FELCMAN:     Fred Felcman for the State,

 9   Judge.
10                 THE COURT:     And, Ms. Martin, you're

11   waiving having Mr. Turner here for this hearing?

12                 MS. MARTIN:     Yes, sir.
13                 THE COURT:     All right.   This was

14   originally scheduled for a status, but I have a few
15   motions that have been filed, one of them was the motion
16   of the defense to strike the State's expert, Murray, I

17   believe is his name.
18                 MS. MARTIN:     Dr. Brian Murray.
19                 THE COURT:     Dr. Brian Murray.

20                 Mr. Felcman, do you have anything to say
21   on that?

22                 MR. FELCMAN:     First of all, this was not
23   the State's expert.    This was an expert appointed by the
24   Court during an ex parte hearing between the defense and

25   the Court.   Dr. Brian Murray's report was never given to
                                                                       5




 1   us nor supplied to us by defense counsel because it was
 2   contrary to what the defense status or the position in

 3   the case was.    The reason we found out about Dr. Brian

 4   Murray is that we found a bill in it, and the second is
 5   that we have the statement from Pat McCann setting out

 6   what Brian Murray had actually said on it.
 7                   As far as a competency, we had no
 8   intention of calling Dr. Brian Murray on this matter.

 9                   MS. MARTIN:     Can I respond briefly, your
10   Honor?

11                   THE COURT:     Yes.

12                   MS. MARTIN:     Dr. Brian Murray never
13   produced a report until the State got a report from him

14   in November.    They're the ones who got him to write a
15   report and, according to him, make adjustments to that
16   report, but in no way did he create a report for the

17   defense.   And he is designated as an expert on one of
18   their designations.
19                   MR. FELCMAN:     That's correct.   That's

20   correct.   But the -- So she understands, the reason he
21   didn't create a report is because he told Pat McCann

22   what he would testify to and Pat McCann put that in his
23   statement, so that's the reason he asked for a report.
24                   THE COURT:     The essence of the argument is

25   the defense wants Mr. Murray stricken as an expert.         The
                                                                     6




 1   State agrees --
 2                   MR. FELCMAN:     I'm not striking him as an

 3   expert.    I agree I'm not calling him as an expert.

 4                   THE COURT:     The State's not going to call
 5   him or offer his report?

 6                   MR. FELCMAN:     That's correct.
 7                   MS. MARTIN:     I'm also asking that no other
 8   expert depend on what is in Mr. Murray's report when

 9   they make their decision.
10                   THE COURT:     Do you know of any expert

11   that's adopted his report?

12                   MS. MARTIN:     Not that I know of.
13                   THE COURT:     Then we'll strike Dr. Murray

14   as an expert and grant the defendant's motion.
15                   All right.     Now, is there any other motion
16   except for the competency exam?

17                   MS. MARTIN:     I don't think so, Judge.
18                   MR. FELCMAN:     No, sir.
19                   THE COURT:     All right.   We'll take up the

20   defendant's filing of a motion to address Mr. Turner's
21   current incompetency.

22                   You may proceed, Ms. Martin.
23                   MS. MARTIN:     When the Court of Criminal
24   Appeals handed down their decision, there were two

25   steps:    One was to determine feasibility of having a
                                                                   7




 1   retrospective competency trial.     Only if that was
 2   possible is there to be a retrospective competency

 3   trial.

 4                  Our request is to have a hearing to
 5   determine if it's feasible or not.     To have a hearing,

 6   all you need is some evidence.     It doesn't necessarily
 7   have to come from any particular source:     A
 8   psychologist, a psychiatrist, a person, documents.

 9   There just has -- It just has to meet a level of some
10   information that supports an inference of incompetency.

11                  We were never given the opportunity to

12   have a hearing to argue feasibility, also known as
13   Mr. Turner's current incompetency.     We were never given

14   the opportunity to bring forth exhibits and bring forth
15   witnesses to argue:   No, it's not feasible because he's
16   incompetent.

17                  So what we're requesting now is to have
18   that hearing to show it's not feasible.     The reason that
19   we believe that in this particular situation things are

20   going to be very different is because the Court of
21   Criminal Appeals looked at the evidence as it existed at

22   trial, and they found:     Okay, there was enough here.
23   It's triggering a trial.
24                  Now we have not only the information that

25   the Court of Criminal Appeals had during their opinion,
                                                                   8




 1   we now have so much more.     We now have more bad
 2   relationships with defense counsel; we have letters

 3   where he exhibits paranoia; we have a diagnosis of

 4   mental illness where he received what's the equivalent
 5   of outpatient treatment.     We have more evidence than the

 6   Court had at the time when they decided there's enough
 7   evidence to have a competency trial; therefore, it has
 8   to be determined, given that evidence, if he today is

 9   currently competent to have a retrospective trial
10   because like Green said, there has to be a base.

11                    Due process is absolutely required for a

12   retrospective competency trial.     That's all over the
13   place:     U.S. Supreme Court, Fifth Circuit, Code --

14   Criminal Court of Appeals.     Over and over, due process
15   has to be met.
16                    Due process cannot be met with the current

17   situation that Mr. Turner is in.     He will be sitting
18   there as if he has no attorney because his attorney will
19   be unable to engage with him whatsoever.     Now we've

20   gotten to the point -- because, of course, we've always
21   been arguing the ability to interact and confer with

22   counsel.     We're now at the point where he doesn't
23   understand the proceedings.
24                    In a meeting with him, he referred to

25   everything as -- quote, unquote -- this competency shit.
                                                                         9




 1   He believes that this proceeding is meant to prevent him
 2   from presenting a motion.      We're not sure what the

 3   motion is.   We think it's a motion to recuse.        And he

 4   believes now he was brought to Fort Bend County to do
 5   something and that -- but he wasn't able to come out

 6   into the courtroom because they wanted to make sure he
 7   didn't make a motion.
 8                  We tried to explain to him that you are

 9   coming back because of your competency issue and you're
10   going to have a trial.      He interpreted that as:     Sure,

11   right, I'm no longer on death row.      He does not

12   understand whatsoever, which is not surprising given the
13   complication that we're talking about the past.

14                  So we've gone from you can't confer --
15   meaningfully confer with your attorneys to he's not sure
16   what this is, which isn't surprising.        Many of us on any

17   given day have had the same type of confusion, so it's
18   gone to the point of not only is he not going to talk to
19   me, I don't even know what questions to ask him to get

20   through to him because he doesn't understand what we're
21   doing.   And for that reason, he has to be restored.           He

22   has to be restored to competency so we can have the
23   retrospective competency trial that the Court of
24   Criminal Appeals demanded.

25                  THE COURT:     Mr. Felcman.
                                                                   10




 1                   MR. FELCMAN:   I don't understand the
 2   argument.    She, first of all, says she has all the

 3   evidence she had at the time, plus additional evidence

 4   now to show that he was incompetent at that time, and
 5   that's what we're here for, the retrospective.       Now

 6   she's saying something additional, and I can't follow
 7   the logic that somehow he disagrees and doesn't
 8   understand what the competency hearing is for, but then

 9   he turns around and says it's a competency hearing.
10                   All we're here for today is whether it's

11   feasible to have a retrospective competency hearing, not

12   what he's like today or tomorrow or 20 years from now.
13   And the grounds for that are quite simple.

14                   First of all, the passage of time,
15   although that's not a critical thing; but it has not
16   been a great passage of time.      The State of Texas tries

17   cases dealing with mental states that are seven or eight
18   years old.
19                   Second, the quality and quantity of the

20   evidence.    The evidence they would have at the time of
21   the competency hearing two and a half years ago is the

22   very same ones they've got now:      Pat McCann, Tyrone
23   Moncriffe.    They also have access to any other doctor
24   they've got at that time.      There is nothing, not one bit

25   of evidence they do not have now that they didn't have
                                                                      11




 1   back then.   In fact, she said they had more.        All this
 2   really is is that -- I'm going to tell it -- is they did

 3   not do what he wanted them to do; therefore, he will not

 4   talk to them anymore.
 5                  The feasibility, in actuality, for you to

 6   say it is not feasible to have a competency hearing, in
 7   my opinion, would be actually an abuse of discretion
 8   because she has not told you one bit why they don't have

 9   the evidence to proceed.      The fact is, if he's
10   incompetent now, that would actually help them out.            The

11   logic is he has to be competent to have an incompetency

12   hearing is an Alice In Wonderland type of logic.         We
13   would never try anybody then.      Therefore, I'm asking you

14   just to deny it.   If she doesn't think it's proper, let
15   her go ahead and take it up on appeal, and that's my
16   argument, Judge.

17                  We have filed an answer.     Also, we just
18   got this motion from her yesterday, but we filed an
19   answer previous to it.      It set out exactly what the law

20   was.   You properly ruled that it was feasible.        We're
21   prepared to go, Judge.

22                  MS. MARTIN:     May I respond?
23                  THE COURT:     Uh-huh.
24                  MS. MARTIN:     That ruling that it was

25   feasible was without argument of counsel and without the
                                                                      12




 1   admission of evidence.        It was a form that had been
 2   filed in April and signed in September and faxed out.

 3   There was no hearing or ability for everyone to come

 4   together and say, This is what we have, where does
 5   the -- where do we think he's at.

 6                    This has nothing to do with who it's
 7   easier on or how many hours I get to work.         He gets due
 8   process.     The only way to have due process is you're

 9   competent.     You have to be competent for a retrospective
10   competency trial.     He's not.

11                    MR. FELCMAN:     I disagree.   There is no

12   case that says that.
13                    THE COURT:     Well, let me address the first

14   issue of having no hearing to determine the
15   retrospective.     I, in fact, conducted a hearing on
16   May 30th of '14 where I found that it was feasible to go

17   forward with the competency exam -- or feasible to go
18   forward with a retrospective competency hearing.         I also
19   ordered at that time another competency exam with

20   Mr. Turner, and he refused to talk to the doctors that I
21   sent up to talk to him, so the feasibility issue has

22   already been decided.
23                    As to his current competency on -- between
24   May 30th and July the 2nd in which the State asked me to

25   reconsider the motion to grant the additional competency
                                                                 13




 1   exam, he had an opportunity to speak to the doctor that
 2   I have appointed to conduct the competency exam, so the

 3   feasibility issue has been decided.

 4                    We're looking at his competency at the
 5   time of the Trial on the Merits at the time that

 6   Mr. McCann indicated to the Court he wanted a competency
 7   hearing, which, in this Court's opinion, it conducted
 8   because the Court did not find and still does not

 9   believe Mr. McCann formally requested a jury competency
10   hearing, but the Court of Criminal Appeals has decided

11   to the contrary, and I will follow their instructions.

12                    I'm not sure how the -- his current
13   competency relates back to his competency at the time of

14   trial.     Now, I'm interpreting your argument to mean that
15   it's necessary that he be competent in order to confer
16   with counsel to go through the retrospective competency

17   hearing.     It raises certainly a question, but all the
18   evidence that is going to be produced is his competency
19   at the time of the Trial on the Merits of this case

20   which has nothing to do with his current competency, so
21   I'm going to deny your motion to --

22                    MS. MARTIN:    May I respond briefly, Judge?
23                    THE COURT:    -- address his current
24   competency.

25                    And you can put what you want on the
                                                                       14




 1   record.
 2                   MS. MARTIN:     The one -- I may be not

 3   making the connection with the current competency, but a

 4   retrospective competency trial requires due process, end
 5   of story.    Due process requires competency, end of

 6   story.    So regardless of what proceeding we're entering
 7   into, he has to be competent.
 8                   By way of example, he doesn't understand

 9   what proceeding he's going to be sitting in, and if we
10   flash something on this -- For example, the State gave

11   us pictures of his cell at T.D.C.J.       I look at it; I see

12   what's on there; I turn to my client to say, Hey, can
13   you explain me -- explain to me what that's about.

14                   THE COURT:     And how does his picture of
15   his cell at T.D.C.J. have any relation to his competency
16   at the time of the Trial on the Merits of this case?

17                   MS. MARTIN:     The State submitted it.     I'm
18   not sure.
19                   MR. FELCMAN:    We just turned over

20   everything possible.    I'm not going to be stuck where,
21   Oh, no, we didn't turn over something they could use.

22   We turned over everything.
23                   MS. MARTIN:     It's in their motion.
24                   THE COURT:     I may not like asking this

25   question, but I sent a professional up to interview
                                                                     15




 1   Mr. Turner subsequent to the hearing on the 30th of May.
 2   Has that -- Other than the fact that he reported that

 3   Turner wouldn't talk to him, was there any evaluation

 4   created by that professional?        Is that the Dr. Murray
 5   that we're talking about?

 6                 MS. MARTIN:     Oh, no.     Dr. Murray's not
 7   qualified to do competency.
 8                 THE COURT:     Okay.    I sent somebody up

 9   there to do that, report back --
10                 MS. MARTIN:     Dr. Self maybe?     Oh, no,

11   Dr. Mohler.

12                 THE COURT:     The report I got back was that
13   Turner refused to talk to him.        Did he make any kind of

14   finding?
15                 MS. MARTIN:     Not that I'm aware of.
16                 MR. FELCMAN:     No.

17                 THE COURT:     So we're right back to where
18   we were on the original competency hearing or competency
19   situation at the time of the trial which we're going to

20   have the feasibility on is he still won't talk to any
21   professionals, so I'm not -- We're going in a circle.           I

22   want to give Mr. Turner all of his rights, but there's
23   nothing that at this point that would change -- that
24   you've shown me that would change my position on a

25   decision I've already made, that's it's feasible to have
                                                        16




 1   the retrospective competency hearing.
 2                 MR. FELCMAN:     Thank you, Judge.

 3                 THE COURT:     Off the record.

 4
 5

 6
 7

 8

 9
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11

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                                                               17




 1   THE STATE OF TEXAS   §
 2   COUNTY OF FORT BEND §

 3       I, Mindy R. Hall, official court reporter in and for

 4   the 268th District Court of Fort Bend County, State of
 5   Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all
 7   portions of evidence and other proceedings requested in

 8   writing by counsel for the parties to be included in

 9   this volume of the Reporter's Record in the above-styled
10   and numbered cause, all of which occurred in open court

11   or in chambers and were reported by me.

12       I further certify that this Reporter's Record of the
13   proceedings truly and correctly reflects the exhibits,

14   if any, offered by the respective parties.
15       I further certify that the total cost for the

16   preparation of this Reporter's Record is $138.00 and

17   will be paid by Fort Bend County.
18       WITNESS MY OFFICIAL HAND this, the 20th day of

19   January, 2015.

20
                              /s/Mindy R. Hall______________
21                            Mindy R. Hall, CSR
                              Texas CSR 8107
22                            Official Court Reporter
                              301 Jackson
23                            Richmond, Texas 77469
                              Telephone: 281.341.8611
24                            Expiration: 12/31/2016

25
                                           17/6 17/10                                 cell [2] 14/11 14/15
$                                         already [2] 12/22 15/25                     certainly [1] 13/17
$138.00 [1] 17/16                         also [5] 6/7 7/12 10/23 11/17 12/18         certify [3] 17/5 17/12 17/15
                                          although [1] 10/15                          CHAD [1] 2/3
'                                         always [1] 8/20                             chambers [1] 17/11
'14 [1] 12/16                             AMY [3] 2/8 2/9 4/6                         change [2] 15/23 15/24
                                          Amymartinlaw [1] 2/11                       circle [1] 15/21
/                                         announcements [1] 4/5                       Circuit [1] 8/13
/s/Mindy [1] 17/20                        another [1] 12/19                           client [1] 14/12
                                          answer [2] 11/17 11/19                      Code [1] 8/13
0                                         any [10] 6/10 6/15 7/7 9/16 10/23 14/15     come [3] 7/7 9/5 12/3
00790369 [1] 2/4                           15/3 15/13 15/20 17/14                     coming [1] 9/9
054233 [1] 1/2                            anybody [1] 11/13                           competency [39]
06881500 [1] 2/2                          anymore [1] 11/4                            competent [6] 8/9 11/11 12/9 12/9 13/15
                                          anything [1] 4/20                            14/7
1                                         AP [1] 1/2                                  complication [1] 9/13
10-DCR-054233 [1] 1/2                     AP-76,580 [1] 1/2                           computerized [1] 1/16
12/31/2016 [1] 17/24                      appeal [1] 11/15                            conduct [1] 13/2
16 [2] 1/12 3/4                           Appeals [6] 6/24 7/21 7/25 8/14 9/24        conducted [2] 12/15 13/7
                                           13/10                                      confer [4] 8/21 9/14 9/15 13/15
2                                         APPEARANCES [1] 2/1                         confusion [1] 9/17
20 [1] 10/12                              APPELLATE [1] 1/2                           connection [1] 14/3
2015 [3] 1/12 3/4 17/19                   appointed [2] 4/23 13/2                     contains [1] 17/6
2016 [1] 17/24                            April [1] 12/2                              contrary [2] 5/2 13/11
202 [1] 2/10                              are [4] 7/19 9/8 10/13 10/17                correct [4] 5/19 5/20 6/6 17/6
20th [1] 17/18                            argue [2] 7/12 7/15                         correctly [1] 17/13
24041402 [1] 2/9                          arguing [1] 8/21                            cost [1] 17/15
268TH [2] 1/5 17/4                        argument [5] 5/24 10/2 11/16 11/25          could [1] 14/21
281.238.3230 [1] 2/7                       13/14                                      counsel [7] 2/7 5/1 8/2 8/22 11/25 13/16
281.341.8611 [1] 17/23                    around [1] 10/9                              17/8
2nd [1] 12/24                             as [13] 5/7 5/7 5/17 5/25 6/2 6/3 6/14      COUNTY [6] 1/4 1/15 9/4 17/2 17/4
                                           7/12 7/21 8/18 8/25 9/10 12/23              17/17
3                                         ask [1] 9/19                                course [1] 8/20
300 [1] 2/10                              asked [2] 5/23 12/24                        court [18]
301 [2] 2/6 17/22                         asking [3] 6/7 11/13 14/24                  Court's [1] 13/7
30th [3] 12/16 12/24 15/1                 Assistant [2] 2/3 2/4                       courtroom [1] 9/6
                                          attorney [4] 2/3 2/4 8/18 8/18              create [2] 5/16 5/21
5                                         attorneys [1] 9/15                          created [1] 15/4
54233 [1] 4/4                             aware [1] 15/15                             Criminal [6] 6/23 7/21 7/25 8/14 9/24
                                                                                       13/10
7                                         B                                           critical [1] 10/15
713.320.3525 [1] 2/11                     back [6] 9/9 11/1 13/13 15/9 15/12          CSR [2] 17/21 17/21
76,580 [1] 1/2                            15/17                                       current [8] 6/21 7/13 8/16 12/23 13/12
77002 [1] 2/10                            bad [1] 8/1                                  13/20 13/23 14/3
77469 [2] 2/6 17/23                       Bar [3] 2/2 2/4 2/9                         currently [1] 8/9
                                          base [1] 8/10
8                                         be [22]                                     D
8107 [1] 17/21                            because [12] 5/1 5/21 7/15 7/20 8/10        day [2] 9/17 17/18
                                          8/18 8/20 9/6 9/9 9/20 11/8 13/8            DCR [1] 1/2
A                                         been [6] 4/15 8/21 10/16 12/1 12/22         dealing [1] 10/17
ability [2] 8/21 12/3                     13/3                                        death [1] 9/11
able [1] 9/5                              before [1] 1/14                             decided [4] 8/6 12/22 13/3 13/10
about [4] 5/3 9/13 14/13 15/5             believe [3] 4/17 7/19 13/9                  decision [3] 6/9 6/24 15/25
above [3] 1/13 17/5 17/9                  believes [2] 9/1 9/4                        defendant [2] 2/12 4/6
above-styled [1] 17/9                     BEND [6] 1/4 1/15 9/4 17/2 17/4 17/17       defendant's [2] 6/14 6/20
above-titled [1] 1/13                     between [2] 4/24 12/23                      defense [7] 4/16 4/24 5/1 5/2 5/17 5/25
absolutely [1] 8/11                       bill [1] 5/4                                8/2
abuse [1] 11/7                            bit [2] 10/24 11/8                          demanded [1] 9/24
access [1] 10/23                          Brady [1] 1/14                              deny [2] 11/14 13/21
according [1] 5/15                        Brian [7] 4/18 4/19 4/25 5/3 5/6 5/8 5/12   depend [1] 6/8
actuality [1] 11/5                        BRIDGES [1] 2/3                             designated [1] 5/17
actually [3] 5/6 11/7 11/10               briefly [2] 5/9 13/22                       designations [1] 5/18
additional [3] 10/3 10/6 12/25            bring [2] 7/14 7/14                         determine [3] 6/25 7/5 12/14
address [3] 6/20 12/13 13/23              brought [1] 9/4                             determined [1] 8/8
adjustments [1] 5/15                                                                  diagnosis [1] 8/3
admission [1] 12/1                        C                                           did [4] 5/16 11/2 13/8 15/13
adopted [1] 6/11                          call [1] 6/4                                didn't [4] 5/21 9/7 10/25 14/21
ago [1] 10/21                             calling [2] 5/8 6/3                         different [1] 7/20
agree [1] 6/3                             came [1] 1/12                               disagree [1] 12/11
agrees [1] 6/1                            can [4] 5/9 9/22 13/25 14/12                disagrees [1] 10/7
ahead [1] 11/15                           can't [2] 9/14 10/6                         discretion [1] 11/7
ALBERT [3] 1/5 4/3 4/7                    cannot [1] 8/16                             DISTRICT [5] 1/3 1/5 2/3 2/4 17/4
Alice [1] 11/12                           case [5] 1/2 5/3 12/12 13/19 14/16          do [12] 4/20 6/10 9/4 10/25 11/3 11/3
all [15] 4/13 4/22 6/15 6/19 7/6 8/12     cases [1] 10/17                             12/5 12/6 13/20 15/7 15/9 17/5
 10/2 10/2 10/10 10/14 11/1 13/17 15/22   cause [3] 1/2 1/13 17/10                    doctor [2] 10/23 13/1
                                           forward [2] 12/17 12/18                    is [40]
D                                          found [4] 5/3 5/4 7/22 12/16               isn't [1] 9/16
doctors [1] 12/20                          FRED [2] 2/2 4/8                           issue [4] 9/9 12/14 12/21 13/3
documents [1] 7/8                          further [2] 17/12 17/15                    it [22]
does [4] 9/11 12/4 13/8 14/14                                                         it's [13] 7/5 7/15 7/18 7/23 9/3 9/17 10/9
doesn't [6] 7/6 8/22 9/20 10/7 11/14       G                                           10/10 11/14 12/6 13/15 14/23 15/25
14/8                                       GAIL [1] 2/5
doing [1] 9/21                             gave [1] 14/10                             J
don't [4] 6/17 9/19 10/1 11/8              get [2] 9/19 12/7                          Jackson [2] 2/6 17/22
down [1] 6/24                              gets [1] 12/7                              JAMES [3] 1/5 4/3 4/7
Dr [2] 4/19 15/11                          give [1] 15/22                             January [3] 1/12 3/4 17/19
Dr. [9] 4/18 4/25 5/3 5/8 5/12 6/13 15/4   given [6] 4/25 7/11 7/13 8/8 9/12 9/17     Judge [7] 1/14 4/9 6/17 11/16 11/21
15/6 15/10                                 gmail.com [1] 2/11                          13/22 16/2
Dr. Brian [5] 4/18 4/25 5/3 5/8 5/12       go [5] 11/15 11/21 12/16 12/17 13/16       JUDICIAL [1] 1/5
Dr. Murray [2] 6/13 15/4                   going [11] 6/4 7/20 9/10 9/18 11/2 13/18   July [1] 12/24
Dr. Murray's [1] 15/6                      13/21 14/9 14/20 15/19 15/21               jury [1] 13/9
Dr. Self [1] 15/10                         gone [2] 9/14 9/18                         just [5] 7/9 7/9 11/14 11/17 14/19
due [7] 8/11 8/14 8/16 12/7 12/8 14/4      got [6] 5/13 5/14 10/22 10/24 11/18        just has [1] 7/9
14/5                                       15/12
during [2] 4/24 7/25                       gotten [1] 8/20                            K
                                           grant [2] 6/14 12/25                       kind [1] 15/13
E                                          great [1] 10/16                            know [3] 6/10 6/12 9/19
easier [1] 12/7                            Green [1] 8/10                             known [1] 7/12
eight [1] 10/17                            grounds [1] 10/13
Elliott [1] 1/14                                                                      L
end [2] 14/4 14/5                          H                                          law [2] 2/9 11/19
engage [1] 8/19                           had [9] 5/6 5/7 7/25 8/6 9/17 10/3 11/1     LESLEIGH [1] 2/5
enough [2] 7/22 8/6                        12/1 13/1                                  let [3] 4/5 11/14 12/13
entering [1] 14/6                         half [1] 10/21                              letters [1] 8/2
equivalent [1] 8/4                        Hall [3] 17/3 17/20 17/21                   level [1] 7/9
essence [1] 5/24                          HAND [1] 17/18                              like [3] 8/10 10/12 14/24
evaluation [1] 15/3                       handed [1] 6/24                             logic [3] 10/7 11/11 11/12
even [1] 9/19                             has [19]                                    longer [1] 9/11
everyone [1] 12/3                         have [37]                                   look [1] 14/11
everything [3] 8/25 14/20 14/22           having [3] 4/11 6/25 12/14                  looked [1] 7/21
evidence [14] 7/6 7/21 8/5 8/7 8/8 10/3   he [40]                                     looking [1] 13/4
 10/3 10/20 10/20 10/25 11/9 12/1 13/18   he's [7] 7/15 9/15 10/12 11/9 12/5 12/10
 17/7                                      14/9                                       M
ex [1] 4/24                               hearing [24]                                machine [1] 1/17
exactly [1] 11/19                         held [2] 1/13 1/15                          made [1] 15/25
exam [5] 6/16 12/17 12/19 13/1 13/2       help [1] 11/10                              make [5] 5/15 6/9 9/6 9/7 15/13
example [2] 14/8 14/10                    her [2] 11/15 11/18                         making [1] 14/3
except [1] 6/16                           here [5] 4/2 4/11 7/22 10/5 10/10           many [2] 9/16 12/7
exhibits [3] 7/14 8/3 17/13               hereby [1] 17/5                             MARTIN [5] 2/8 2/9 4/6 4/10 6/22
existed [1] 7/21                          Hey [1] 14/12                               matter [2] 4/3 5/8
expert [10] 4/16 4/23 4/23 5/17 5/25 6/3  him [15] 5/13 5/14 5/15 6/2 6/3 6/5 8/19    may [8] 6/22 11/22 12/16 12/24 13/22
 6/3 6/8 6/10 6/14                         8/24 9/1 9/8 9/19 9/20 12/21 15/3 15/13    14/2 14/24 15/1
Expiration [1] 17/24                      his [17] 4/17 5/22 6/5 6/11 8/18 12/23      maybe [1] 15/10
explain [3] 9/8 14/13 14/13                13/4 13/12 13/13 13/18 13/20 13/23         McCann [6] 5/5 5/21 5/22 10/22 13/6
                                           14/11 14/14 14/15 14/15 15/22              13/9
F                                         Honor [1] 5/10                              MCCONNELL [1] 2/5
fact [4] 11/1 11/9 12/15 15/2             Honorable [1] 1/14                          me [8] 4/5 9/19 12/13 12/24 14/13 14/13
far [1] 5/7                               hours [1] 12/7                              15/24 17/11
faxed [1] 12/2                            Houston [1] 2/10                            mean [1] 13/14
feasibility [6] 6/25 7/12 11/5 12/21 13/3 how [3] 12/7 13/12 14/14                    meaningfully [1] 9/15
 15/20                                    huh [1] 11/23                               meant [1] 9/1
feasible [10] 7/5 7/15 7/18 10/11 11/6                                                meet [1] 7/9
 11/20 11/25 12/16 12/17 15/25            I                                           meeting [1] 8/24
FELCMAN [4] 2/2 4/8 4/20 9/25             I'm [13] 6/2 6/3 6/7 9/11 11/2 11/13        mental [2] 8/4 10/17
few [1] 4/14                               13/12 13/14 13/21 14/17 14/20 15/15        Merits [3] 13/5 13/19 14/16
Fifth [1] 8/13                             15/21                                      met [2] 8/15 8/16
filed [4] 4/15 11/17 11/18 12/2           I've [1] 15/25                              Mindy [3] 17/3 17/20 17/21
filing [1] 6/20                           illness [1] 8/4                             Mitigation [1] 2/12
find [1] 13/8                             included [1] 17/8                           Mohler [1] 15/11
finding [1] 15/14                         incompetency [4] 6/21 7/10 7/13 11/11       Moncriffe [1] 10/23
first [4] 4/22 10/2 10/14 12/13           incompetent [3] 7/16 10/4 11/10             more [4] 8/1 8/1 8/5 11/1
flash [1] 14/10                           indicated [1] 13/6                          MORTON [1] 2/5
flash something [1] 14/10                 inference [1] 7/10                          motion [12] 4/15 6/14 6/15 6/20 9/2 9/3
follow [2] 10/6 13/11                     information [2] 7/10 7/24                   9/3 9/7 11/18 12/25 13/21 14/23
following [1] 1/12                        instructions [1] 13/11                      motions [3] 1/9 3/3 4/15
foregoing [1] 17/5                        intention [1] 5/8                           MR [2] 2/2 2/3
form [1] 12/1                             interact [1] 8/21                           Mr. [13] 4/11 4/20 5/25 6/8 6/20 7/13
formally [1] 13/9                         interpreted [1] 9/10                        8/17 9/25 12/20 13/6 13/9 15/1 15/22
FORT [6] 1/4 1/15 9/4 17/2 17/4 17/17     interpreting [1] 13/14                      Mr. Felcman [2] 4/20 9/25
forth [2] 7/14 7/14                       interview [1] 14/25                         Mr. McCann [2] 13/6 13/9
                                         position [2] 5/2 15/24                     say [4] 4/20 11/6 12/4 14/12
M                                        possible [2] 7/2 14/20                     saying [1] 10/6
Mr. Murray [1] 5/25                      preparation [1] 17/16                      says [3] 10/2 10/9 12/12
Mr. Murray's [1] 6/8                     prepared [1] 11/21                         scheduled [1] 4/14
Mr. Turner [5] 4/11 8/17 12/20 15/1      presenting [1] 9/2                         second [2] 5/4 10/19
15/22                                    Presiding [1] 1/14                         see [1] 14/11
Mr. Turner's [2] 6/20 7/13               prevent [1] 9/1                            Self [1] 15/10
MS [4] 2/5 2/5 2/8 4/10                  previous [1] 11/19                         sent [3] 12/21 14/25 15/8
Ms. [1] 6/22                             proceed [2] 6/22 11/9                      September [1] 12/2
Ms. Martin [1] 6/22                      proceeding [3] 9/1 14/6 14/9               set [1] 11/19
much [1] 8/1                             proceedings [6] 1/12 1/16 4/1 8/23 17/7    setting [1] 5/5
Murray [10] 4/16 4/18 4/19 5/4 5/6 5/8   17/13                                      seven [1] 10/17
5/12 5/25 6/13 15/4                      process [7] 8/11 8/14 8/16 12/8 12/8       she [7] 5/20 10/2 10/2 10/3 11/1 11/8
Murray's [3] 4/25 6/8 15/6               14/4 14/5                                   11/14
my [5] 11/7 11/15 14/12 15/24 17/18      produced [2] 5/13 13/18                    she's [1] 10/6
                                         professional [2] 14/25 15/4                shit [1] 8/25
N                                        professionals [1] 15/21                    show [2] 7/18 10/4
name [1] 4/17                            proper [1] 11/14                           shown [1] 15/24
necessarily [1] 7/6                      properly [1] 11/20                         signed [1] 12/2
necessary [1] 13/15                      psychiatrist [1] 7/8                       simple [1] 10/13
need [1] 7/6                             psychologist [1] 7/8                       sir [2] 4/12 6/18
never [5] 4/25 5/12 7/11 7/13 11/13      put [2] 5/22 13/25                         sitting [2] 8/17 14/9
no [20]                                                                             situation [3] 7/19 8/17 15/19
not [35]                                 Q                                          so [14] 5/20 5/23 6/17 7/17 8/1 9/14
nothing [4] 10/24 12/6 13/20 15/23       qualified [1] 15/7                          9/17 9/22 12/21 13/2 13/20 14/6 15/17
November [1] 5/14                        quality [1] 10/19                           15/21
now [15] 6/15 7/17 7/24 8/1 8/1 8/19     quantity [1] 10/19                         some [2] 7/6 7/9
8/22 9/4 10/4 10/5 10/12 10/22 10/25     question [2] 13/17 14/25                   somebody [1] 15/8
11/10 13/14                              questions [1] 9/19                         somehow [1] 10/7
numbered [2] 1/13 17/10                  quite [1] 10/13                            something [4] 9/5 10/6 14/10 14/21
                                         quote [1] 8/25                             source [1] 7/7
O                                                                                   speak [1] 13/1
occurred [1] 17/10                       R                                          Specialist [1] 2/12
Off [1] 16/3                             raises [1] 13/17                           STATE [12] 1/3 2/7 4/3 4/8 5/13 6/1
offer [1] 6/5                            really [1] 11/2                             10/16 12/24 14/10 14/17 17/1 17/4
offered [1] 17/14                        reason [5] 5/3 5/20 5/23 7/18 9/21         State's [3] 4/16 4/23 6/4
Office [1] 2/9                           received [1] 8/4                           statement [2] 5/5 5/23
official [3] 17/3 17/18 17/22            reconsider [1] 12/25                       states [1] 10/17
Oh [3] 14/21 15/6 15/10                  record [6] 1/1 14/1 16/3 17/9 17/12        status [2] 4/14 5/2
Okay [3] 4/2 7/22 15/8                    17/16                                     stenotype [1] 1/16
old [1] 10/18                            recuse [1] 9/3                             steps [1] 6/25
one [6] 4/15 5/17 6/25 10/24 11/8 14/2   referred [1] 8/24                          still [2] 13/8 15/20
ones [2] 5/14 10/22                      reflects [1] 17/13                         story [2] 14/5 14/6
only [4] 7/1 7/24 9/18 12/8              refused [2] 12/20 15/13                    Street [1] 2/10
open [1] 17/10                           regardless [1] 14/6                        stricken [1] 5/25
opinion [3] 7/25 11/7 13/7               relates [1] 13/13                          strike [2] 4/16 6/13
opportunity [3] 7/11 7/14 13/1           relation [1] 14/15                         striking [1] 6/2
order [1] 13/15                          relationships [1] 8/2                      stuck [1] 14/20
ordered [1] 12/19                        report [13] 4/25 5/13 5/13 5/15 5/16       styled [1] 17/9
original [1] 15/18                        5/16 5/21 5/23 6/5 6/8 6/11 15/9 15/12    submitted [1] 14/17
originally [1] 4/14                      reported [3] 1/16 15/2 17/11               subsequent [1] 15/1
other [5] 6/7 6/15 10/23 15/2 17/7       reporter [2] 17/3 17/22                    Suite [1] 2/10
Our [1] 7/4                              REPORTER'S [4] 1/1 17/9 17/12 17/16        supplied [1] 5/1
out [6] 5/3 5/5 9/5 11/10 11/19 12/2     request [1] 7/4                            supports [1] 7/10
outpatient [1] 8/5                       requested [2] 13/9 17/7                    Supreme [1] 8/13
over [6] 8/12 8/14 8/14 14/19 14/21      requesting [1] 7/17                        sure [6] 9/2 9/6 9/10 9/15 13/12 14/18
14/22                                    required [1] 8/11                          surprising [2] 9/12 9/16
                                         requires [2] 14/4 14/5
P                                        respective [1] 17/14                       T
paid [1] 17/17                           respond [3] 5/9 11/22 13/22                T.D.C.J [2] 14/11 14/15
paranoia [1] 8/3                         restored [2] 9/21 9/22                     take [2] 6/19 11/15
parte [1] 4/24                           retrospective [13] 7/1 7/2 8/9 8/12 9/23   talk [7] 9/18 11/4 12/20 12/21 15/3
particular [2] 7/7 7/19                   10/5 10/11 12/9 12/15 12/18 13/16 14/4     15/13 15/20
parties [2] 17/8 17/14                    16/1                                      talking [2] 9/13 15/5
passage [2] 10/14 10/16                  Richmond [3] 1/15 2/6 17/23                Telephone [3] 2/7 2/11 17/23
past [1] 9/13                            right [5] 4/13 6/15 6/19 9/11 15/17        tell [1] 11/2
Pat [4] 5/5 5/21 5/22 10/22              rights [1] 15/22                           testify [1] 5/22
person [1] 7/8                           row [1] 9/11                               TEXAS [15] 1/3 1/4 1/15 2/2 2/4 2/6 2/7
picture [1] 14/14                        ruled [1] 11/20                             2/9 2/10 4/3 10/16 17/1 17/5 17/21
pictures [1] 14/11                       ruling [1] 11/24                            17/23
place [1] 8/13                                                                      than [2] 8/5 15/2
please [1] 4/5                           S                                          Thank [1] 16/2
plus [1] 10/3                            said [3] 5/6 8/10 11/1                     that [62]
point [4] 8/20 8/22 9/18 15/23           said on [1] 5/6                            that's [11] 5/19 5/19 5/23 6/6 6/11 8/12
portions [1] 17/7                        same [2] 9/17 10/22                         10/5 10/15 11/15 14/13 15/25
                                         we [27]
T                                        we'll [2] 6/13 6/19
their [6] 5/18 6/9 6/24 7/25 13/11 14/23 we're [15] 4/2 7/17 8/22 9/2 9/13 9/20
them [4] 4/15 11/3 11/4 11/10             10/5 10/10 11/20 13/4 14/6 15/5 15/17
then [4] 6/13 10/8 11/1 11/13             15/19 15/21
there [13] 6/15 6/24 7/2 7/9 7/22 8/10   we've [3] 8/19 8/20 9/14
 8/18 10/24 12/3 12/11 14/12 15/3 15/9 Well [1] 12/13
there's [2] 8/6 15/22                    were [5] 6/24 7/11 7/13 15/18 17/11
therefore [3] 8/7 11/3 11/13             what [19]
they [12] 6/9 7/22 8/6 9/6 10/20 10/23   what's [2] 8/4 14/12
 10/25 10/25 11/1 11/2 11/8 14/21        whatsoever [2] 8/19 9/12
They're [1] 5/14                         when [3] 6/8 6/23 8/6
they've [2] 10/22 10/24                  where [8] 8/3 8/4 8/22 12/4 12/5 12/16
thing [1] 10/15                           14/20 15/17
things [1] 7/19                          whether [1] 10/10
think [4] 6/17 9/3 11/14 12/5            which [7] 9/12 9/16 12/24 13/7 13/20
this [23]                                 15/19 17/10
through [2] 9/20 13/16                   who [2] 5/14 12/6
time [14] 8/6 10/3 10/4 10/14 10/16      why [1] 11/8
 10/20 10/24 12/19 13/5 13/5 13/13       will [5] 8/17 8/18 11/3 13/11 17/17
 13/19 14/16 15/19                       without [2] 11/25 11/25
titled [1] 1/13                          WITNESS [1] 17/18
today [3] 8/8 10/10 10/12                witnesses [1] 7/15
together [1] 12/4                        won't [1] 15/20
told [2] 5/21 11/8                       Wonderland [1] 11/12
tomorrow [1] 10/12                       work [1] 12/7
total [1] 17/15                          would [7] 5/22 10/20 11/7 11/10 11/13
transcription [1] 17/6                    15/23 15/24
Travis [1] 2/10                          wouldn't [1] 15/3
treatment [1] 8/5                        write [1] 5/14
trial [17] 1/2 7/1 7/3 7/22 7/23 8/7 8/9 writing [1] 17/8
 8/12 9/10 9/23 12/10 13/5 13/14 13/19
 14/4 14/16 15/19                        Y
tried [1] 9/8                            years [3] 10/12 10/18 10/21
tries [1] 10/16                          Yes [2] 4/12 5/11
triggering [1] 7/23                      yesterday [1] 11/18
true [1] 17/6                            you [15] 4/20 6/10 6/22 7/6 9/8 9/14
truly [1] 17/13                           11/5 11/8 11/13 11/20 12/9 13/25 13/25
try [1] 11/13                             14/13 16/2
turn [2] 14/12 14/21                     you're [3] 4/10 9/9 12/8
turned [2] 14/19 14/22                   you've [1] 15/24
TURNER [10] 1/5 4/3 4/7 4/11 8/17        your [6] 4/5 5/9 9/9 9/15 13/14 13/21
 12/20 15/1 15/3 15/13 15/22
Turner's [2] 6/20 7/13
turns [1] 10/9
two [2] 6/24 10/21
type [2] 9/17 11/12
Tyrone [1] 10/22
U
U.S [1] 8/13
Uh [1] 11/23
Uh-huh [1] 11/23
unable [1] 8/19
understand [6] 8/23 9/12 9/20 10/1 10/8
14/8
understands [1] 5/20
unquote [1] 8/25
until [1] 5/13
up [5] 6/19 11/15 12/21 14/25 15/8
us [4] 5/1 5/1 9/16 14/11
use [1] 14/21
V
very [2] 7/20 10/22
volume [4] 1/1 1/1 3/2 17/9
W
waiving [1] 4/11
want [2] 13/25 15/22
wanted [3] 9/6 11/3 13/6
wants [1] 5/25
was [21]
wasn't [1] 9/5
way [3] 5/16 12/8 14/8
Exhibit
  F
                                CAUSE NO. 10-DCR-054233


THE STATE OF TEXAS                           §              IN THE DISTRICT COURT OF

V.                                           §              FORT BEND COUNTY, TEXAS

ALBERT JAMES TURNER                          §              268TH      JUDICIAL DISTRICT


       MOTION TO ADDRESS MR. TURNER’S CURRENT INCOMPETENCY


Mr. Turner is currently incompetent making it, at this time, unfeasible to conduct a
retrospective competency trial without violating his right to Due Process. The court must:

               1. Conduct a current competency trial; or
               2. Send Mr. Turner to an appropriate state or federal psychiatric
                  facility for competency restoration; or
               3. Rule the retrospective competency trial unfeasible

                                              *****

     Albert Turner, by and through his attorney of record, and pursuant to the 5th, 6th, 8th &
14th Amendments to the United States Constitution and Article 1, sections 3, 10, 13 & 19 of
the Texas Constitution, Article 39.14 of the Texas Code of Criminal Procedure, makes this
motion.


     1. On May 31, 2011, Defendant was convicted of capital murder and on June 7, 2011 he
        was sentenced to death.

     2. On October 30, 2013, the Court of Criminal Appeals sustained the Defendant’s ninth
        point of error, abated the appeal, and remanded the case, directing the trial court to
        first determine if a retrospective competency trial is feasible. If it is, the court shall
        conduct a retrospective competency trial.

     3. A retrospective competency trial is not feasible, at this time, because of Mr. Turner’s
        current incompetency.      A retrospective competency trial is only feasible if an
   individual’s due process rights are protected. Drope v. Missouri, 420 U.S. 162, 183
   (1975).


4. Mr. Turner must be able to assist his counsel during the retrospective competency
   trial and he is not currently capable of doing that. Greene v. State, 264 S.W.3d 271,
   272 (Tex. App.—San Antonio 2008).


5. The Court of Criminal Appeals remanded the case because Mr. Turner was denied a
   competency trial at a point when he should have been granted one. Just like at trial,
   an informal inquiry has been initiated here. All of the evidence of incompetency must
   be examined (and all evidence of competency disregarded) to decide if there is some
   evidence that may lead to a conclusion of incompetency. There is a scintilla of
   evidence of Mr. Turner’s incompetency and the law requires a current competency
   trial.


6. The Court of Criminal Appeals held that there was enough evidence as of August 8,
   2011 to warrant a retrospective competency trial. Now, 3 years later, the evidence of
   incompetence has become more voluminous. There have been additional mental
   health interventions and expressions of Mr. Turner’s paranoid delusions. Turner at
   696.


7. The Court must conduct a current competency trial to determine if Mr. Turner is
   competent right now, so that a retrospective competency trial can be conducted within
   the bounds of Due Process.


8. Alternatively, the Court should send Mr. Turner to an appropriate state or federal
   psychiatric facility for competency restoration to ensure any subsequent proceeding is
   Constitutional.


9. Alternatively, the Court should rule a retrospective competency trial unfeasible, and
       forward the findings to the Court of Criminal Appeals in accordance with its opinion.


       WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court conduct
a current competency trial; or, in the alternative, send Mr. Turner to an appropriate state
psychiatric facility for competency restoration; or, alternatively, rule the retrospective
competency trial unfeasible.


                                           Respectfully submitted,


                                            Robert A. Morrow
                                           ____________________________
                                           ROBERT A. MORROW
                                           State Bar No. 14542600
                                           24 Waterway Ave., Suite 660
                                           The Woodlands, Texas 77380
                                           Telephone: 281-379-6901


                                            _____________________________
                                             Amy Martin
                                           AMY MARTIN
                                           State Bar No. 24041402
                                           202 Travis St., Suite 300
                                           Houston, Texas 77002
                                           Telephone: 713-320-3525




                               CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing motion has been sent
to Fred Felcman, counsel for the State, on January 15, 2015.

                                                   Robert A. Morrow
                                                  ________________________________
                                                  ROBERT MORROW
                              CAUSE NO. 10-DCR-054233


 THE STATE OF TEXAS                          §             IN THE DISTRICT COURT OF

 V.                                          §             FORT BEND COUNTY, TEXAS

 ALBERT JAMES TURNER                         §            268TH      JUDICIAL DISTRICT


                         ORDER ON MOTION TO ADDRESS
                     MR. TURNER’S CURRENT INCOMPETENCY


Before the court is the Defendant’s Motion to Address Mr. Turner’s Current Competency.

After considering the motion, the evidence, and the arguments of the parties, it is the opinion

of the Court that:



       ____There must be a current competency trial conducted in accordance with Article

       46B of the Texas Code of Criminal Procedure.



       ____Mr. Turner will be sent to an appropriate state or federal psychiatric facility in

       order to be restored to competency.



       ____The retrospective competency trial is unfeasible and the findings and records

       generated since the remand should be forwarded to the Court of Criminal Appeals.



                                    Signed this the _________________________, 2015.


                                                    _____________________________
                                                    JUDGE PRESIDING
                               CAUSE NO. 10-DCR-054233


THE STATE OF TEXAS                          §              IN THE DISTRICT COURT OF

V.                                          §              FORT BEND COUNTY, TEXAS

ALBERT JAMES TURNER                         §              268TH     JUDICIAL DISTRICT


       DEFENDANT’S BRIEF IN SUPPORT OF THE MOTION TO ADDRESS
               MR. TURNER’S CURRENT INCOMPETENCY


Mr. Turner is currently incompetent making it, at this time, unfeasible to conduct a
retrospective competency trial without violating his right to Due Process. The court must:

              1. Conduct a current competency trial; or
              2. Send Mr. Turner to an appropriate state or federal psychiatric
                 facility for competency restoration; or
              3. Rule the retrospective competency trial unfeasible


                                            ******

The Texas Court of Criminal Appeals held that it was error to deny Mr. Turner a competency
trial and provided clear instructions for remedying that error:

       Accordingly, we sustain the appellant's ninth point of error, abate the
       appeal, and remand the cause to the trial court. 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), reh'g denied (Apr. 2,
2014).

Feasibility comes first

A retrospective competency trial is only feasible if an individual’s due process rights are
protected. Drope v. Missouri, 420 U.S. 162, 183 (1975). 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).

The Court of Criminal Appeals has acknowledged “the difficulties inherent in making a
retrospective determination of a defendant's competency. The United States Supreme Court
has stressed these difficulties in its decisions.” 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).

Some of these difficulties include passage of time, present recollection of expert witnesses
who previously testified, and ability of the judge and jury to observe the defendant.
Caballero at 743. However, such a determination can be made within the limits of due
process depending upon the quality and quantity of the evidence available. Barber v. State,
737 S.W.2d 824, 828 (Tex. Crim. App. 1987).

The Court of Criminal Appeals has held that “if the pre-trial competency hearing was not
held and should have been, or was improper for some reason and merited a new hearing, the
appeal would be abated and a retrospective competency hearing could be held.” Huff v. State,
807 S.W.2d 325, 326 (Tex. Crim. App. 1991); See also Ex parte Garrett, No. WR-75,447-
01, 2011 WL 2382572, at *1 (Tex. Crim. App. June 8, 2011).

No competency, no Due Process

Mr. Turner’s current competency is one of several “pertinent considerations” that the Court
of Criminal Appeals has required the trial court to examine. Mr. Turner must be able to
assist his trial counsel. Greene v. State, 264 S.W.3d 271, 272 (Tex. App.—San Antonio
2008). If he cannot assist his counsel, his Constitutional right to Due Process will be
violated. In Greene, the Court of Appeals held:

           Clearly, Greene's ability to assist his trial attorney will be critical to
           the outcome of issues to be addressed at the retrospective competency
           determination and he should not be deprived of his right to assist
           counsel.

Greene at 273.




                                                                                    Page 2 of 13
Court of Criminal Appeals’ instructions on what not to do

The Court of Criminal Appeals was clear about what factors led to its decision that a
competency trial should have been conducted during Mr. Turner’s trial; those factors are still
present and now there is additional evidence indicating (1) Mr. Turner must be restored to
competency or (2) that the threshold is met to require a current competency trial. Texas Code
of Criminal Procedure 46B.004(c).

The Court of Criminal Appeals held that the appointment of Dr. Connie Almeida during trial
was evidence that the trial court “was obviously persuaded” that there was a bona fide doubt
as to Mr. Turner’s competency. Turner at 692.

After remand, when the parties met in court to discuss the retrospective competency trial,
defense counsel requested an evaluation for current competency. The trial court ordered that
Mr. Turner be evaluated for current competency. This decision is identical to the one to
appoint Dr. Almeida at trial and, likewise, it shows that the court “was obviously persuaded”
that there was a bona fide doubt as to Mr. Turner’s current competency.

The Court of Criminal Appeals explained how to proceed from this point on to determine if a
competency trial is required:

       The question therefore becomes whether, in light of what became known to
       the trial court by the conclusion of this informal inquiry, it should have
       conducted a formal competency trial. The answer depends upon whether
       “some evidence from any source” had arisen by that time “that would support
       a finding that [the appellant] may be incompetent to stand trial.” In making
       this determination, a trial court must consider only that evidence tending to
       show incompetency, “putting aside all competing indications of competency,
       to find whether there is some evidence, a quantity more than none or a
       scintilla, that rationally may lead to a conclusion of incompetency.” If so, then
       “evidence exists to support a finding of incompetency,” and the statutory
       scheme requires the trial court to conduct a formal competency trial.

Turner at 692-93. (footnotes omitted)(emphasis added).


Consider only evidence of incompetency



                                                                                   Page 3 of 13
       First, the trial court focused erroneously on evidence of competency rather
       than evidence of incompetency, relying upon the ultimate conclusions of Drs.
       Gollaher and Axelrad, as well as Dr. Almeida's subsequent opinion that the
       appellant's cognitive functioning had not significantly changed in the interim.

Turner at 694.

No change needed

       Second, the trial court erred to the extent that it denied the appellant's request
       for a formal competency trial on the grounds that the appellant failed to
       demonstrate any “change” of status since the earlier findings of competency
       by Gollaher and Axelrad. There was no adjudication of the competency issue
       in the summer of 2010 following their evaluations—not even an informal
       inquiry to decide whether there was sufficient evidence at that time to invoke a
       formal competency trial. Thus, there was no prior judicial competency
       determination to justify a requirement of a change in circumstances.

Turner at 694-695.

Right now, prior to the retrospective competency trial, considering only the evidence tending
to show incompetency, is there more than no evidence that rationally might lead to a
conclusion of incompetency? The answer is “yes.”


The Court of Criminal Appeals has remanded this case because, at trial, the answer was also
“yes” and the request for a competency trial was denied. If Mr. Turner’s request for a
current competency trial is denied, it will be the same error and we will be brought back to
this point again.

All evidence of incompetency allowed

The only limit on the evidence that a court may consider when determining the necessity of a
competency trial is that it must be evidence of incompetency. Some examples are found in
Tex. Crim. Proc. Code Ann. art. 46B.024, the statute that addresses competency evaluations.
Some of the items listed include a defendant’s capacity to “disclose to counsel pertinent
facts, events, and states of mind;” “engage in a reasoned choice of legal strategies and
options;” and “testify.”    The statute also requires an expert to consider “whether the
defendant has a mental illness.” Experts are also directed that they “shall consider . . . other



                                                                                   Page 4 of 13
issues determined relevant by the expert.”

Court of Criminal Appeals’ compelling evidence

The Court of Criminal Appeals provided several examples of evidence that it believes
warranted conducting a competency trial:

Evaluations of Dr. Axelrad and Dr. Gollaher:

       Both of the [their] competency reports reflect the substantial possibility that he
       was suffering from paranoia that may have been the product of “a paranoid
       disorder,” and that he was apparently exhibiting delusions. Gollaher expressly
       found that the appellant had a factual understanding of the proceedings and
       could “communicate events in an understandable manner and can report his
       state of mind.” But her report did not speak specifically to whether his
       condition would adversely affect his capacity either to “engage with counsel in
       a reasonable and rational manner[,]” or to “engage in a reasoned choice of
       legal strategies and options[.]” Axelrad's report did speak to those capacities
       and, in fact, he found the appellant to be “mildly impaired” with respect to
       both. Axelrad noted that, “[i]n the event [that the appellant] has a paranoid
       disorder, this may be contributing to the problems he is experiencing with his
       attorney.” Notwithstanding the experts' ultimate conclusions that the appellant
       was competent, the trial court was effectively put on notice of the need to
       maintain vigilance to assure that the appellant's due process rights were
       preserved.

Turner at 693-94.

Attorney’s reports of Mr. Turner’s paranoia and lack of communication

       The appellant's paranoia had progressed to the point that, if the representations
       of his own lawyers are to be credited, he believed that they were openly
       conspiring with the prosecutors to secure his conviction. He flatly refused to
       communicate with them during the voir dire proceedings.

Turner at 694.

Mr. Turner’s ongoing delusions

       By May of 2011, there had arisen new evidence in the form of the appellant's
       obviously irrational belief that his ongoing delusion with respect to the Mayor
       of Kendleton somehow provided him with a defense to prosecution for capital
       murder that was preferable to the approach that his trial lawyers urged him to
       pursue. That the appellant persisted in this delusion-fueled belief against the


                                                                                   Page 5 of 13
           emphatic advice of counsel, together with the earlier suggestions that he
           suffered from a paranoid disorder, was enough to raise the likelihood of
           incompetency to a level beyond that which is evinced by a mere dispute
           between an ordinarily obstinate defendant and his legal counsel over plausible
           trial strategies.

Turner at 695.

Additional evidence of incompetency discovered since the Mr. Turner’s trial

Mental Health History

In the Court of Criminal Appeals’ opinion, it is noted that Mr. Turner did not have any
mental health history. Id. at 693. Now, that is not the case. In October of 2011, he was
transferred to the Skyview Unit of TDCJ for mental health treatment1.

Mr. Turner was moved to a psychiatric unit because he had not eaten in 9 days, was hoarding
his blood pressure medication, and had not showered in a month. He was “unshaven and
disheveled . . . quiet and sullen.” He had also given away all of his things (commissary).

He was dysphoric, had “some mental confusion,” and received a diagnosis of Major
Depressive Disorder. In August of 2011, in a mental health interview, Mr. Turner “reported
that he is not mentally ill and just wanted to make that clear.” He expressed concern that his
letters were not being sent to his sister. The notation also includes the statement: “Pt.
reported that he doesn't trust his lawyers and is willing to let the clock run out on his
appeals process due to this fact.”

Mr. Turner later discussed his case and the file notes reflect:

           He informs there is no evidence against him except for circumstantial evidence
           as the blood in the house and in his own car was not any of his, and the blood
           in the car was not the victims. He weaves a tale of a conspiracy beginning at
           Kendelton with the Police Chief and Mayor (who was caught in a relationship
           with his wife that resulted in wife having Mayor's child and getting strung out
           on heroin). TDCJ, judge, Kendelton officials, private school where his
           children attend (which was founded by his in-laws and in bylaws indicates
           continued free education for his children), and even his own lawyer are

1
    All of the information related to TDCJ is in Mr. Turner’s records.


                                                                                     Page 6 of 13
       involved in this conspiracy by withholding evidence of witnesses he was
       unable to confront due to having been videoed versus live covering up of
       motions, tying up his retirement monies in order to keep him from paying
       for a 'real' lawyer. He has refused to sign a document in relation to Habeas
       Corpus due to once signed there is no going back.

The impressions documented by the mental health provider are:

       He has a recurring theme of 'out to get him'. One person being out to get
       someone is believable, but the more people involved the less believable it
       becomes. With Mr. Turner, he does not only have several different individuals
       involved, but several different agencies of government. His reasoning for
       conspiracy involving the judge includes a photo in a newspaper in which the
       judge was seen shaking hands with the Mayor of Kendelton with the Police
       Chief looking on and a situation in the court room whereby a motion that had
       been filed by his sister was in question and he was to verify his knowledge of
       same and he had already done so and was physically forced to place his thumb
       print on the document. The conspiracy involves several departments within
       TDCJ and across units as well. He appears to be more paranoid than anything,
       but this involves a close look at the whole situation. If he is treated for
       paranoia this could be misconstrued to the paranoid mind as an attempt to help
       in the conspiracy against him.


Not all of the relevant documentation is so detailed. One entry states: “Refuses to sign
refusal - something to do with his case and DNA and attorneys, so SO and Med signed as
witnesses.” Even though some of the notes are cryptic, it is clear that contextually, they
point to Mr. Turner’s current incompetency.

Subsequent to trial, the trial court treated Mr. Turner as if he was incompetent

Mr. Turner did not want his trial counsel to turn his file over to the Office of Capital Writs
(“OCW”), his attorneys for his habeas proceedings. Therefore, he would not sign a release.
There were 2 hearings on the issue, one of which Mr. Turner was present for, and repeatedly
informed the court he did not want to sign the release at that time.

Mr. Turner’s choice to not release his files was ignored and, instead, the trial court signed an
order for Mr. McCann to give the files to the OCW stating: “the focus of this hearing is what
is best for Mr. Turner, and, as such, will order that the files be transferred.” (RR67, 52).



                                                                                     Page 7 of 13
The Court of Criminal Appeals, reviewing the trial court’s actions, stated: “Assuming Turner
is legally competent (as the trial court found in this case), he is entitled to choose not to turn
over his trial file; and McCann, as Turner's former counsel and agent, must honor that
decision for the reasons that we have explained.” In re McCann, 422 S.W.3d 701, 709 (Tex.
Crim. App. 2013). When someone is legally competent, “they can define his or her own best
interests, and that decision will control.” Id. at 707.

The action of signing the order commanding trial counsel to relinquish Mr. Turner’s file
because it was in his best interest is evidence that he is presenting as an incompetent person.
The Court of Criminal Appeals’ held that such an order could only be signed if Mr. Turner
was incompetent.

“Delusion-fueled belief” persists and prevents effective assistance at all levels

The Court of Criminal Appeals repeatedly refers to evidence of the attorney-client
relationship as presented by the attorneys. Turner at 694. Now, there is evidence of the
same paranoia that the Court discussed interfering with subsequent attorney-client
relationships. “Generally, the close interaction presumed by the lawyer/client relationship
makes trial counsel the best source of information about a defendant's competency.”
Aldridge v. Thaler, No. CIV.A. H-05-608, 2010 WL 1050335, at *6 (S.D. Tex. Mar. 17,
2010)

Appellate counsel

Mr. Turner has refused all correspondence from his appellate attorneys and has also refused
visits from the attorneys and any of their representatives while he has been housed on death
row.

Earlier this month, appellate counsel tried twice to meet with Mr. Turner in the Fort Bend
County Jail. The first attempted visit resulted in Mr. Turner telling the deputies “I don’t have
lawyers.”

The next attempt included appellate counsel and an expert doctor. Mr. Turner refused to


                                                                                     Page 8 of 13
come out and jail personnel escorted both individuals back to his cell to speak to him through
the cell window. The doctor introduced himself, Mr. Turner briefly looked up, was non-
responsive, and stared at the floor. Mr. Turner was told that the doctor was court appointed.
When appellate counsel attempted to speak with him; the response was the same.

Writ counsel

The Office of Capital Writs, Mr. Turner’s first habeas counsel, spent a lot of time with him
after they were appointed. Specifically, over 3-4 months they visited with him 11 times.
(RR67, 40). However, the visits were brief because Mr. Turner became paranoid and ended
the visits when the lawyers began talking about their representation. OCW filed a “Motion
to Bring Mr. Turner Back to Court to Determine if he Wishes to Proceed Pro Se; or in the
Alternative, Request this Court Order a Competency Evaluation of Mr. Turner.”


In an effort to attempt to help Mr. Turner understand why he needed to sign a release for his
lawyers, OCW brought his mother and sister in from Florida the day before Christmas Eve to
visit with him in Skyview, a TDCJ mental health unit. His sister Juanita believed she could
convince him to sign the release. Even after four hours with him, Mr. Turner would not sign
the release for OCW (“the state” as he referred to it). Juanita reported that Mr. Turner said
he wanted a writ filed, but not by OCW. But, he seemed to understand that no other counsel
would be appointed and that time was running out. Even after the long visit with his family,
Mr. Turner refused to visit with counsel from OCW.


Ultimately, because the trial court would not grant its motion for a competency evaluation,
OCW filed a “Motion to Bring Mr. Turner Back to Court to Determine if he Wishes to
Proceed Pro Se; or in the Alternative, Request this Court Order a Competency Evaluation of
Mr. Turner.” Both requests were denied and the OCW withdrew as Mr. Turner’s habeas
counsel. (RR68, 6).




                                                                                  Page 9 of 13
New writ counsel


The court then appointed James Rytting and he had the same difficulty with Mr. Turner. He
filed an affidavit stating that he had visited Turner in person at the Polunsky Unit twice and
had attempted to meet him on other occasions. He also stated that Turner accepted file-
release forms from him, and Turner told Rytting that he would think about executing them.
In re McCann, 422 S.W.3d 701, 703 (Tex. Crim. App. 2013).

My lawyers are trying to kill me

At Polunsky, Mr. Turner was not able to make phone calls. While at Fort Bend County Jail,
he spoke several time to his family and those conversations were recorded and the state has
provided more than hours of recordings.           Those calls provide the best insight into Mr.
Turner’s ability to consult with his lawyer and his lack of understanding of these
proceedings. A universal theme of Mr. Turner’s paranoia is his lawyers being corrupt and
working with the government, judge, and prison to keep him quiet.

Mr. Turner’s first attempted call was to his sister, who he considers his legal liaison. He
could not reach her. Then, when he finally gets to speak to his mother for the first time in
years, he immediately begins to talk about how his letters to his family are being held
whenever he sends something with legal information in it. He rapidly described how his
lawyers and the judge were trying to stop his Due Process.

Does not understand the proceeding

Mr. Turner believes that the competency trial is an attempt to “derail him” from filing his
motion. He refers to it as the “competency crap.” He has no understanding of the fact that
this proceeding has nothing to do with his current competency and that the outcome will not
affect his sister’s ability to file motions on his behalf.

It is unclear what the motions are, but he’s hoping they mess the lawyers up because they are
corrupt. He’s in a hurry to file the motions because he believes his attorneys will shut him
down when they find out he’s doing it.


                                                                                  Page 10 of 13
His paranoia makes him believe that his attorneys want to keep him quiet and they’re trying
to kill him because that’s how the system works.

Decompensated to double the trouble

The emphasis in the appeal and remand was Mr. Turner’s incompetence under Texas Code
of Criminal Procedure Art. 46B.003 (a)(1)-- he did not have the “sufficient present ability to
consult with the person’s lawyer with a reasonable degree of rational understanding.”
Mr. Turner still lacks that ability as evidenced by his incapability of stepping out of his
delusion to even acknowledge his defense team or a psychological expert.

However, the current circumstances illustrate that Mr. Turner does not have a “rational as
well as factual understanding of the proceedings against” him. Art. 46B.003(a)(2).

A retrospective competency trial is a complicated and rare proceeding in which most
experienced criminal defense attorneys will never participate. In this case, novel issues have
arisen; even the mechanics of the process are confusing. Mr. Turner does not have “a
rational as well as factual understanding of the proceedings against” him without having a
sufficiently rational conversation with counsel.


To be legally competent he must be able to understand what fact is at issue in this
proceeding, who has the burden of proof, what the potential outcomes are for him, the roles
of his attorneys, the Judge and the prosecutors, the applicability of his Constitutional rights to
confrontation, counsel, and to testify. Mr. Turner’s paranoid delusions prevent him from
interacting with counsel and foreclose any chance of a rational understanding of the
proceedings against him.


Behaviors that constitute a scintilla

In addition to mental health treatment, Mr. Turner has gone on hunger strikes at different
times during his incarceration. He also refuses to sign anything or submit a fingerprint. At
one point he believed his blood pressure medicine was actually psychiatric medicine. He



                                                                                    Page 11 of 13
believes that Captain Brownfield at the Fort Bend County Jail is the reason his Due Process
is being violated.    He believes he was being kept in separation to prevent him from
completing his “motion”. And, if he were able to complete it, he would have to be left out.

“Particular cause for concern”—Defendant testifying

The Court of Criminal Appeals made it very clear that the most troublesome aspect of Mr.
Turner’s case was the fact that he testified and he may have been incompetent when he did
so.
        And we think there is particular cause for concern when a defendant's mental
        impairment directly touches upon certain fundamental decisions that the
        criminal justice system reserves for him to make personally—albeit after
        “engaging” meaningfully with counsel—such as whether to testify in his
        own defense. Precisely because the defendant retains ultimate authority over
        these decisions, it is critical that he be able “to consult with counsel with a
        reasonable degree of rational understanding” about them.

Turner 690-91.

The Court accurately described Mr. Turner as a person that “persisted in this delusion-fueled
belief against the emphatic advice of counsel.” Id. at 695. And while Due Process requires
an understanding and ability to invoke all Constitutional rights, the right to remain silent is
paramount. "Most critically, he may well have been incapable of making a rational, non-
delusional decision with respect to whether or not to accept his trial counsel's advice not to
testify.” Id.

Without an attempt to restore Mr. Turner to competency, this scenario that the Court of
Criminal Appeals found so alarming may repeat itself.. Mr. Turner may choose to exercise
his right to testify in this trial and he would be utterly clueless about what he could or should
testify about. Of course, counsel would advise him against taking the stand, but given his
inability to understand the proceedings and consult with counsel, he would forge ahead to his
detriment, just as he did at trial. If the competency trial is flawed in such a way that the
Court of Criminal Appeals believes Mr. Turner’s rights were not protected, this case will
again be remanded and we will find ourselves in this same procedural posture with the same
incompetent Mr. Turner. Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978).


                                                                                   Page 12 of 13
Something has to be done

    The court must conduct a current competency trial to determine if Mr. Turner is
      competent so that a retrospective competency trial can be conducted within the
      bounds of Due Process.

    Alternatively, the court should send Mr. Turner to an appropriate state or federal
      psychiatric facility for competency restoration so that there can be a constitutionally
      sound retrospective competency trial.


    Alternatively, the court must rule a retrospective competency trial unfeasible, and
      forward findings to the Court of Criminal Appeals in accordance with the opinion.

                                                               Respectfully submitted,

                                                   Robert A. Morrow
                                                  ____________________________
                                                  ROBERT A. MORROW
                                                  State Bar No. 14542600
                                                  24 Waterway Ave., Suite 660
                                                  The Woodlands, Texas 77380
                                                  Telephone: 281-379-6901


                                                   Amy Martin
                                                  _____________________________
                                                 AMY MARTIN
                                                 State Bar No. 24041402
                                                 202 Travis St., Suite 300
                                                 Houston, Texas 77002
                                                 Telephone: 713-320-3525




                                                                               Page 13 of 13
Exhibit
  G
                                                                                             AP-76580
                                                                        COURT OF CRIMINAL APPEALS
                                                                                         AUSTIN, TEXAS
                                                                      Transmitted 7/7/2014 11:40:36 AM
                                                                         Accepted 7/7/2014 1:22:39 PM
                                                                                          ABEL ACOSTA
                                    NO. AP-76,580                                                CLERK

ALBERT JAMES TURNER                         §    IN THE

VS.                                         §    COURT OF CRIMINAL APPEALS

THE STATE OF TEXAS                          §    STATE OF TEXAS


  STATE’S MOTION FOR ENFORCEMENT OF THE TRIAL COURT’S
            LIMITED JURISDICTION ON REMAND


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      On remand of this case, the trial court ordered the parties to each provide the

name of a psychiatrist to evaluate Albert James Turner for competency to stand a

retrospective competency trial. The State of Texas, by and through its District

Attorney, 268th Judicial District, Fort Bend County, Texas, moves this Court to

enforce the limited jurisdiction of the trial court on remand to determine whether a

retrospective competency trial is feasible, and if so, to hold the trial. Turner v. State,

422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013).

                                            I.

                                  Procedural History

      On May 31, 2011, a jury convicted Appellant of capital murder, committed on

or about December 27, 2009. [58 RR 1, 6] On June 7, 2011, Turner was sentenced



                                            1
to death. On direct appeal, this Court abated Turner’s appeal and remanded this case

to the trial court to “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, 422 S.W.3d at 696.         If a

retrospective competency trial is feasible, the trial court “shall proceed to conduct

such a trial in accordance with Chapter 46B, Subchapter C, of the Code of Criminal

Procedure.” Id. at 697.

      The trial court held a procedural and scheduling hearing on May 30, 2014. At

that hearing, Turner’s attorneys presented the court and the State with Greene v.

State, 264 S.W.3d 271 (Tex. App.--San Antonio, 2008, pet. ref’d), and urged the trial

court to have Turner examined for his contemporary competency to stand trial. The

attorneys argued that Turner’s contemporary competency was relevant to the court’s

determination of feasibility because Turner should be competent at the retrospective

competency trial to assist counsel in proving he was incompetent when his trial was

held in April-June 2011.

      The State was unaware of the Greene opinion, but Turner’s attorney accurately

stated its holding.1 In an abundance of caution, the trial court ordered both parties to

      1
             A copy of Greene v. State, 264 S.W.3d 271 (Tex. App.--San Antonio,
2008, pet. ref’d), is attached as Exhibit A to this motion. The petition for
discretionary review of the Bexar County District Attorney’s Office did not question

                                           2
suggest a psychiatrist to evaluate Turner’s contemporary competency. The trial judge

stated on the record that he did not believe Turner was incompetent at trial and did

not believe that Turner was incompetent now, but would appoint the psychiatrists to

evaluate Turner out of an abundance of caution in light of Greene.

      On June 9, 2014, the trial court appointed Dr. Mary Alice Conroy to evaluate

Turner for contemporary competency. [Exhibit C, copy of the order]

      On July 1, 2014, the State filed a motion for reconsideration of the trial court’s

order to have Turner evaluated for contemporary competency. [Exhibit D, copy of

the motion] On July 2, 2014, the trial court denied the motion as not having been

raised in the original hearing. [Exhibit E, copy of the order]

                                          II.

              Greene is unsupported by authority and there is none to
           require contemporary competence at a retrospective hearing.

      The Greene court’s requirement that a defendant be competent to assist counsel

at the retrospective competency is unsupported by authority. The State has not found

a case from this Court where a defendant’s contemporary competency is listed as a

factor to consider in determining whether a retrospective competency hearing is



contemporary competency, but focused on whether a retrospective hearing should
have been ordered in the first place. The issues raised are attached as Exhibit B to
this motion.

                                          3
feasible. See, e.g., Hawkins v. State, 660 S.W.2d 65, 84-85 (Tex. Crim. App. 1983)

(citng Brandon v. State, 599 S.W.2d 567, 573-74 (Tex. Crim. App. 1979), vacated on

other grounds 453 U.S. 902 (1981) (considerations include the “passage of time,

present recollection of expert witnesses who testified at the original hearing, and

ability of the judge and jury to observe the subject of their inquiry,” but finding that

“[r]etrospective determinations are possible depending upon the facts of each case

and the quality and quantity of evidence available”); Cabellero v. State, 587 S.W.2d

741, 743 (Tex. Crim. App. 1979) (retrospective competency determination is feasible

three years later when defendant’s relatives and expert witnesses and their records of

psychological testing are available to again testify about the defendant’s competency).

      The State has not found a case from the high court of any other jurisdiction

requiring a defendant to be presently competent to assist counsel at a retrospective or

nunc competency hearing. See e.g., Blakeney v. United States, 77 A.3d 328, 349

(D.C. Cir. 2013) (relevant to determining the feasibility of a postjudgment hearing on

a defendant’s mental competence are: “(1) [t]he passage of time, (2) the availability

of contemporaneous medical evidence and prior competency determinations, (3) any

statements by the defendant in the trial record, and (4) the availability of individuals

and trial witnesses, both experts and non-experts, who were in a position to interact

with [the] defendant before and during trial”); People v. Ary, 246 P.3d 322, 329 n.3

                                           4
(Cal. 2011), cert. denied 132 S.Ct. 136 (2011) (same); Edwards v. State, 902 N.E.2d

821, 826 (Ind. 2009) (same); Maynard v. Boone, 468 F.3d 665, 674-75 (10th Cir.

2006), cert. denied 549 U.S. 1285 (2007) (same); United States v. Collins, 430 F.3d

1260, 1267 (10th Cir. 2005) (same); Johnson v. Commonwealth, 103 S.W.3d 687, 693

(Ky. 2003), cert. denied 540 U.S. 986 (2003) (same); State v. Sanders, 549 S.E.2d 40,

54 (W.Va. 2001) (same).

      At least the Fourth and Ninth Circuit Courts of Appeals have found that the

defendant has due process and fair trial constitutional rights to be present at a

competency hearing. Sturgis v. Goldsmith, 796 F.2d 1103, 1108-09 (9th Cir. 1986),

accord United State v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992). This finding

is largely based on the Ninth Circuit’s observation in Sturgis that in three of the five

competency hearings held in the case, the defendant was present and was found

incompetent. Sturgis, 796 F.2d at 1109. When the defendant was absent, he was

found competent. Id. The Ninth Circuit held, that a defendant has a “constitutional

right to be present at every stage of the trial where his absence might frustrate the

fairness of the proceedings.” Sturgis, 796 F.2d at 1109.

      Sturgis and Barfield, show that contemporary competency is not required for

a retrospective competency hearing.

      While certain trial-type rights must be afforded at a competency hearing,

                                           5
contemporary competency is not one of them. See Tex. Code Crim. Proc. art.

46B.006 (“defendant is entitled to representation by counsel at any court-ordered

competency evaluation and during any proceeding on competency”); Tex. Code Crim.

Proc. art. 46B.008 (Texas Rules of Evidence apply to a competency trial); see also

e.g., United States v. Jent, No. 6: 13–26–DCR–02, 2014 WL 320582, *2 (E.D.Ky. Jan

29, 2014) (18 U.S. C. § 4247(d) governs the competency hearing, and assures certain

trial-type rights, including the right to counsel, the right to confront and

cross-examine witnesses, and the right to participate in the hearing). Contemporary

competency is not a pertinent factor to consider in determining whether a

retrospective competency trial is feasible.

                                       III.

      The State has found two cases directly addressing the defendant’s right to be

competent at a retrospective competency hearing, Ryder v. State, 83 P.3d 856, 870-71

(Okla. Crim. App.), cert. denied 543 U.S. 886 (2004) (death penalty case); and State

v. McRae, 594 S.E.2d 71, 79 (N.C. Ct. App.), pet. denied 599 S.E.2d 911 (N.C.

2004).

      In Ryder, the defendant was sentenced to life without parole for one murder

and death for another. 83 P.3d at 860. On appeal after the case was remanded for

retrospective competency determination, Ryder claimed that “the trial court erred in

                                          6
failing to hold a hearing to determine his contemporary competency prior to

proceeding with the retrospective competency determination.” Ryder, 83 P.3d at 870.

Ryder argued that the retrospective competency hearing was a “criminal proceeding,”

and as such, the hearing should have been “suspended pending his contemporary

competency.” Id.

      The Oklahoma Court of Criminal Appeals noted that “[a] competency hearing

is a special proceeding for the purpose of ensuring full compliance with due process

requirements, but itself is not a criminal prosecution.” Ryder, 83 P.3d at 870 (quoting

Rogers v. Lansdown, 829 P.2d 687, 688 (Okla. Crim. App. 1992)). The court then

summarily held, “As the retrospective competency hearing in this case occurred after

judgment and sentencing, it is not a criminal proceeding that must be suspended

pending determination of contemporary competency.” Ryder, 83 P.3d at 871.

      In McRae, on appeal from a retrospective competency determination, McRae

asserted that “the trial court erred when it found that defendant was competent to

proceed at the 7 June 2001 retrospective competency hearing,” and in proceeding

without the presence of the defendant in violation of his statutory and constitutional

rights. Id., 594 S.E.2d at 79. The court noted that the purpose of the competency

statutes “is to determine whether defendant is or was capable to stand trial.” Id. “Our

Supreme Court has held that these hearings ‘[do] not implicate defendant’s

                                          7
confrontation rights and [do] not have a substantial relation to his opportunity to

defend.’” Id. (quoting State v. Davis, 506 S.E.2d 455, 466 (N.C. 1998), cert. denied

526 U.S. 1161 (1999)). “Therefore, whether or not defendant was competent at the

7 June 2001 retrospective competency hearing does not implicate his constitutional

or statutory rights.” McRae, 594 S.E.2d at 79.

      Turner’s contemporary competency to stand a retrospective jury trial is

irrelevant, and is not a pertinent consideration in determining whether retrospective

competency trial is feasible.

                                        IV.

      Contemporary competency is irrelevant to a retrospective competency
     hearing and outside the limited jurisdiction of the trial court on remand.

      This Court’s opinion remanded this case for a determination of whether a

retrospective competency trial is feasible. Turner, 422 S.W.3d at 696-97.

      A defendant’s contemporary competency is irrelevant to a retrospective

competency hearing. If the competency hearing had been held just before or in the

middle of trial, the defendant may or may not have been competent to stand trial. At

a retrospective hearing, evidence of the defendant’s competence at the time of trial

is shown to enable the judge or jury to determine whether the defendant was

competent then.



                                         8
      In this case, Turner’s trial counsel asserted that Turner was incompetent.

Though it did not believe Turner was incompetent, the trial court appointed Dr.

Connie Almeida to evaluate Turner before his trial began “in an abundance of

caution.” Many of Turner’s relatives were present during the trial and testified at the

punishment stage. There are also recordings of Turner’s jail phone calls and video

recordings of jail visits with friends and family. A retrospective competency trial is

easily feasible, unless as Turner’s attorneys now propose, Turner must be competent

for the retrospective competency trial and some expert finds he is not.

      “After a trial court has lost plenary jurisdiction, it may nonetheless re-acquire

‘limited’ jurisdiction to perform specific functions as authorized by statute or as

instructed on remand by a higher court.” State v. Holloway, 360 S.W.3d 480 (Tex.

Crim. App. 2012). “Trial court jurisdiction over a case is an absolute systemic

requirement.” State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009). “If

there is no jurisdiction, the court has no power to act.” Id. (citing Garcia v. Dial, 596

S.W.2td 524, 528 (Tex. Crim. App. 1980)).

       A determination of Turner’s contemporary competency is not a pertinent factor

to the determination of whether a retrospective competency trial, it is outside the

scope of the limited jurisdiction of the trial court on remand, and the State asks this

Court to clarify and enforce the limited jurisdiction conferred.

                                           9
      WHEREFORE PREMISES CONSIDERED, the State asks the Court to enforce

the limited jurisdiction of the trial court on remand to determine whether a

retrospective competency hearing is feasible, and if so, to hold a competency trial.

                                               Respectfully submitted,

                                               John F. Healey, Jr.
                                               SBOT # 09328300
                                               District Attorney, 268th Judicial District
                                               Fort Bend County, Texas

                                               /s/ Gail Kikawa McConnell
                                               Gail Kikawa McConnell
                                               SBOT # 11395400
                                               Assistant District Attorney
                                               301 Jackson Street, Room 101
                                               Fort Bend County, Texas 77469
                                               (281) 238-3205 / (281) 238-3340 (fax)
                                               Gail.McConnell@fortbendcountytx.gov


                          CERTIFICATE OF SERVICE

       I hereby certify that a copy of the foregoing State's motion to enforce the trial
court’s limited jurisdiction on remand, was served on July 7, 2014, by first class mail,
return receipt requested # 7013 0600 0002 2111 6334 on Mr. Robert Morrow, 24
Waterway Avenue, Suite 660, The Woodlands, Texas 77380; and on the State
Prosecuting Attorney, return receipt requested # 7013 0600 0002 2111 6327
Ms. Lisa McMinn, P.O. Box 13046, Austin, Texas 78711-3046.

                                               /s/ Mattie Sanford
                                               Mattie Sanford




                                          10
                                    NO. AP-76.580


ALBERT JAMES TURNER,                      §   IN THE
Appellant                                 §
                                          §   COURT OF CRIMINAL APPEALS
VS.                                       §
                                          §   STATE OF TEXAS
THE STATE OF TEXAS, Appellee              §

                                  LIST OF EXHIBITS


Exhibit A:   Copy of Greene v. State, 264 S.W.3d 271 (Tex. App.—San Antonio
             2008, pet. ref d).

Exhibit B:   Copy of issues raised in the Greene petition for discretionary review.

Exhibit C:   Copy of the trial court's appointment of Dr. Conroy

Exhibit D:   Copy of State's motion for reconsideration

Exhibit E:   Copy of the trial court's order, denying the State's motion
Exhibit A
Westlaw
                                                                                                           Page 1
264S.W.3d271
(Cite as: 264 S.W.3d 271)




                                                          Cited Cases


              Court of Appeals of Texas,                  Criminal Law 110 €^>625.25
                     San Antonio.
            Shane S. GREENE, Appellant,                   110 Criminal Law

                          v.
                                                             110XX Trial

            The STATE of Texas, Appellee.                        110XX(A) Preliminary Proceedings
                                                                     110k623 Separate Trial or Hearing on Is
                 No. 04-05-00783-CR.                      sue of Insanity, Incapacity, or Incompetency
                    May 14, 2008.                                         110k625.25 k. Retrospective or nunc
   Discretionary Review Refused Sept. 10, 2008.           pro tunc hearing. Most Cited Cases

Background: Defendant was convicted by jury in                   Retrospective   determination   of   defendant's
the 399th Judicial District Court, Bexar County,          competency to stand trial following his robbery
Juanita A. Vasquez-Gardner, J., of robbery, and           conviction was not feasible within confines of due
punishment at 10 years confinement was assessed.          process, and, thus, defendant was entitled to new
Defendant appealed. Following rehearing, the Court        trial in the interest of justice; defendant's fluctuat
of Appeals, 225 S.W.3d 324, determined that the           ing mental condition made it impracticable for trial
trial court abused its discretion by not conducting       court to conduct a retrospective inquiry into de
an informal inquiry into defendant's competency           fendant's competency to stand trial in a timely or
during guilt/innocence phase of trial, abated appeal,     judicially efficient manner, almost three years had
and remanded.                                             passed since defendant's conviction, and he had yet
                                                          to maintain a level of competence sufficient to pro
Holding: On restatement and further rehearing, the        ceed with any judicial proceedings, and, based on
Court of Appeals, Catherine Stone, J., held that ret      defendant's most recent psychiatric evaluation, he
rospective determination of defendant's competency        was expected to remain incompetent for the indef
to stand trial was not feasible within confines of
                                                          inite future. U.S.C.A. Const.Amend.         14; Rules
due process, and, thus, defendant was entitled to         App.Proc, Rules 43.3, 43.6.
new trial in the interest of justice.
                                                          [2] Constitutional Law 92 €==>4783(1)
       Reversed and remanded.
                                                          92 Constitutional Law
                   West Headnotes
                                                             92XXVII Due Process
                                                                  92XXVII(H) Criminal Law
[1] Constitutional Law 92 €^4783(1)
                                                                     92XXVII(H)9 Disadvantaged Persons
92 Constitutional Law                                                   92k4781 Incompetency or Mental Ill
                                                          ness
   92XXVII Due Process
        92XXVII(H) Criminal Law                                             92k4783 Determination of Compet
           92XXVII(H)9 Disadvantaged Persons              ency or Sanity
              92k4781 Incompetency or Mental Ill                                 92k4783(l) k. In general. Most
ness
                                                          Cited Cases

                  92k4783 Determination of Compet
                                                              Retrospective determination of competency to
ency or Sanity
                                                          stand trial may be conducted consistent with the re
                     92k4783(l) k. In general. Most
                                                          quirements of due process in most cases. U.S.C.A.




                          © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                             Page 2
264S.W.3d271
(Cite as: 264 S.W.3d 271)




Const.Amend. 14.                                                 Following the issuance of our opinion on re-
                                                                                            FN1
                                                            hearing on February 7, 2007,      Greene was eval
[3] Criminal Law 110 €^>625.25
                                                            uated by medical personnel and declared incompet
                                                            ent on April 16, 2007. Greene's retrospective com
110 Criminal Law
                                                            petency inquiry was thus postponed and Greene
    110XX Trial
                                                            was referred to the Texas Department of State
       110XX(A) Preliminary Proceedings
                                                            Health Services ("TDSHS") for psychiatric treat
           110k623 Separate Trial or Hearing on Is
                                                            ment. On September 20, 2007, TDSHS notified the
sue of Insanity, Incapacity, or Incompetency
                                                            trial court that Greene was deemed "mentally in
                110k625.25 k. Retrospective or nunc
                                                            competent to stand trial with no possibility of re
pro tunc hearing. Most Cited Cases
                                                            gaining competence in the foreseeable future." The
      Difficulties inherent in making a retrospective       TDSHS, however, determined Greene did not re
determination of defendant's competency to stand            quire further inpatient psychiatric treatment for his
trial include: (1) the passage of time, (2) the present     condition and returned Greene to the custody of the
recollection of expert witnesses who testified at the       Bexar County Adult Detention Center. On October
original hearing, and (3) the ability of the judge and      17, 2007, the trial court reported to this court that it
jury to observe the subject of their inquiry.               would continue to monitor Greene's condition in
                                                            definitely.
*271 Angela J. Moore, Chief Public Defender, San
Antonio, TX, for Appellant.                                          FN1. See Greene v. State, 225 S.W.3d 324
                                                                     (Tex.App.-San Antonio 2007, no pet.).
Crystal D. Chandler, Assistant Criminal District At
torney, San Antonio, TX, for Appellee.                           Greene was evaluated by a state psychiatrist on
                                                            October 29, 2007, and was found to be competent
                                                            following his evaluation. Greene's attorney never
Sitting: ALMA L. LOPEZ, Chief Justice, CATH                 theless    "expressed     reservations     regarding
ERINE STONE, Justice, SARAH B. DUNCAN,                      [Greene's] competency to stand trial." In an abund
Justice (not participating).                                ance of caution, the trial court ordered Greene to
                                                            undergo an additional competency evaluation. This
 OPINION ON REINSTATEMENT AND FUR                           evaluation, like the earlier psychiatric evaluation,
                THER REHEARING                              suggested Greene was competent to proceed on
CATHERINE STONE, Justice.                                   January 24, 2008.
     The facts of the underlying case are fully dis
                                                                 On February 11, 2008, Greene asked this court
cussed in the previous opinion issued*272 by this
                                                            to reconsider whether a retrospective competency
court; therefore, we mention only those additional
                                                            inquiry was feasible under the circumstances of this
facts that are necessary to address the issue of
                                                            case. This court denied Greene's request, and we
whether a retrospective competency inquiry is
                                                            ordered the trial court to conduct a retrospective in
proper under the circumstances presented. After
                                                            quiry into Greene's competency no later than March
further consideration, this court has determined that
                                                            24, 2008. Before the trial court proceeded with its
a retrospective competency inquiry would deny ap
                                                            retrospective competency inquiry, however, the
pellant Shane Greene due process under the facts of
                                                            court ordered Greene to undergo a psychiatric eval
this case. We therefore hold that Greene is entitled
                                                            uation to determine whether he was competent to
to a new trial in the interest of justice. Accordingly,
                                                            participate in his retrospective competency determ
we reverse the trial court's judgment and remand
                                                            ination. A state psychiatrist evaluated Greene's con
the cause to the trial court for a new trial.
                                                            dition on March 17, 2008, and the psychiatrist de-




                            © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                            Page 3
264S.W.3d271
(Cite as: 264 S.W.3d 271)




termined that Greene was not competent to proceed.           will be critical to the outcome of issues to be ad
As a result of Greene's psychiatric evaluation,              dressed at the retrospective competency determina
Greene was referred to the TDSHS for psychiatric             tion and he should not be deprived of his right to
treatment and his retrospective competency inquiry           assist counsel. However, waiting for Greene to
was again postponed indefinitely.                            come to a point where he could actually assist his
                                                             trial attorney could prove to be an exercise of futil
      [1][2] Greene's fluctuating mental condition           ity since Greene has been unable to maintain a level
has made it impracticable for the trial court to con         of competency for any significant period of time
duct a retrospective inquiry into Greene's compet            since his conviction. Greene's fluctuating mental
ency to stand trial in a timely or judicially efficient      condition, combined with the mounting passage of
manner. It has been almost three years since                 time, suggests that a retrospective competency in
Greene's conviction, and he has yet to maintain a            quiry is simply not feasible in this case.
level of competence sufficient to proceed with any
judicial proceedings. A retrospective competency                 Given that Greene's present incompetency is
inquiry would be meaningless if Greene does not              expected to continue indefinitely, we conclude that
possess at least some level of competency at the             a retrospective competency inquiry is not feasible
time the inquiry is conducted. Based on Greene's             and hold that Greene is entitled to a new trial in the
most recent psychiatric evaluation, Greene is ex             interest of justice. See TEX.R.APP. P. 43.3; 43.6.
pected to remain incompetent for the indefinite fu           Accordingly, the judgment of the trial court is re
ture. Consequently, we are left to speculate as to           versed and the cause is remanded to the trial court
when, if ever, the retrospective competency inquiry          for a new trial.
may occur in this case. While retrospective compet
ency inquiries may be *273 conducted consistent              Tex.App.-San Antonio,2008.
with the requirements of due process in most cases,          Greene v. State

see   Barber   v.   State,   131   S.W.2d   824,   828       264S.W.3d271

(Tex.Crim.App. 1987) (recognizing a retrospective
                                                             END OF DOCUMENT
determination of the competency of an accused
"can be made within the limits of due process de
pending upon the quality and quantity of the evid
ence available"), we are of the opinion that the
present case poses an exception.

      [3] There are many difficulties inherent in
making a retrospective determination of a defend
ant's competency to stand trial, including: (1) the
passage of time; (2) the present recollection of ex
pert witnesses who testified at the original hearing;
and (3) the ability of the judge and jury to observe
the subject of their inquiry. Id.; Caballero v. State,
587 S.W.2d 741, 743 (Tex.Crim.App. 1979). The
fact that Greene is presently unable to proceed with
any judicial proceedings nearly three years after his
conviction is problematic because his current men
tal condition is expected to continue indefinitely.
Clearly, Greene's ability to assist his trial attorney




                             © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Exhibit B
                             NO. PD-

               TO THE COURT OF CRIMINAL APPEALS
                   OF TEXAS AT AUSTIN, TEXAS


                       THE STATE OF TEXAS,
                                    Appellant - Respondent

                               v.


                        SHANE S. GREENE,
                                    Appellee • Petitioner


             FROM THE FOURTH COURT OF APPEALS
                    AT SAN ANTONIO, TEXAS
                  CAUSE NUMBER 04-05-00783-CR


    STATE'S nRST AMENDED PETITION FOR DISCRETIONARY REVIEW



                                    SUSAN D. REED
                                    Criminal District Attorney
                                    Bexar County, Texas


                                    JAMES ISHIMOTO
                                    TIM MOLINA
                                    Assistant Criminal District Attorney
                                    Bexar County, Texas


ORAL ARGUMENT WAIVED                CRYSTAL CHANDLER
                                    Assistant Criminal District Attorney
                                    Bexar County, Texas
                                    Cadena-Reeves Justice Center
                                    300 Dolorosa, Suite 4030
                                    San Antonio, Texas 78205-3030
                                    Telephone No. (210) 335-2418
                                    State Bar No. 90001609
                                    (On Appeal)

                                    Attorneys for the State
                      IDENTITY OF THE PARTIES AND COUNSEL

       A complete list of all parties to the trial court's judgment or order appealed from,

and the names and addresses of all trial and appellate counsel is provided here. See Tex.

R. App. P. 38.1(a).

Counsel for the State:
       Crystal Chandler- Counsel on appeal.
       James Ishimoto - Counsel at trial.
       Tim Molina - Counsel at trial.
       Assistant Criminal District Attorneys
       Bexar County, Texas
       Cadena-Reeves Justice Center
       300 Dolorosa, Suite 4030
       San Antonio, Texas 78205

Appellee or Criminal Defendant:
       Shane Greene

Counsel for Appellee:
       Bill Harris - Counsel at trial
       Angela Moore - Counsel on appeal
       410 S. Main Ave., Suite 214
       San Antonio, Texas 78204

Trial Judges:
       Honorable Juanita Vasquez-Gardner- Presiding Judge.
                            TABLE OF CONTENTS
                                                                          PAGE(S)

TABLE OF CONTENTS                                                                      iii

TABLE OF AUTHORITIES                                                                   iv

STATEMENT REGARDING ORAL ARGUMENT                                                     vii

STATEMENT OF THE CASE                                                                 viii

STATEMENT OF PROCEDURAL HISTORY                                                         x

GROUNDS FOR REVIEW                                                                      !

     Ground for Review 1;

     Whether the Court of Appeals applied an incorrect standard of review to the
     appellant's complaint that the trial court failed to conduct an informal
     inquiry pursuant to Article 46B.004(c)                             3

     Ground for Review 2;

     Did the Court of Appeals err by failing to recognize the trial court conducted
     an "informal inquiry" pursuant to Texas Code of Criminal Procedure article
     46B.004(c)?                                                         10

     Ground for Review 3:


     Whether the Court of Appeal's finding that the trial court did not conduct an
     'Informal inquiry" implicitly imports a high degree of formality notintended
     by the Legislature when it created the new 'informal inquiry" component of
     Article 46B.004(c) in the Code of Criminal Procedure                    12

ARGUMENT                                                                               2

CERTIFICATE OF SERVICE                                                                15

APPENDIX                                                                              16




                                       in
Exhibit C
10-DCR-054233
ORDER
Order
3081251




                                                        Cause No. 54,233


            STATE OF TEXAS                                     §               IN THE 268' "DISTRICT


            V.                                                 §               COURT OF FORT BEND


            ALBERT TURNER                                                      COUNTY, TEXAS



                                       ORDER AUTHORIZING FUNDING FOR A
                            COMPETENCY EXPERT IN A DEATH PENALTY CASE



                       On this    /     day of June, 2014, came to be heard Defendant's Motion for Funding
            for a Competency Expert in a Death Penalty Case, and the Court is of the opinion and it is
            hereby ORDERED, that said request is:


                                      iS        GRANTED in the amount of
                                                                           X ^iS"^^-5*^
                                 -^-


                                           ^ENlEDTTowHicITiUliiigDefeiidaiii timely except

                       Additionally, it is ORDERED that the Defendant's expert, Dr. Mary Alice Conroy,
            along with any designated assistant, shall have access to Mr. Turner in an interview room in
            the Fort Bend County Jail, during which Mr. Turner, DOB 01/11/1965, will be free from
                restraints and able to write.



                       The Defendant's expert, Dr. Conroy, along with any designated assistant, shall also
            have access to Mr. Turner, TDCJ# 999565, while he is housed in the Texas Department of
            Criminal Justice. The expert shall have access to an interview room and Mr. Turner shall be
            free from restraints and able to write.


                SIGNED this V day oil/ UmZ^                        ,2014



                    FILED
Exhibit D
10-DCR-0S4233
MOTI
Motion (No Fee)
3109397



                                      CAUSE NO. 10-DCR-054233


                                                     §              IN THE 268TH JUDICIAL
          EX PARTE
                                                     §                 DISTRICT COURT OF
           ALBERT JAMES TURNER
                                                     §       FORT BEND COUNTY, TEXAS

                    STATE'S MOTION FOR RECONSIDERATION OF THE ORDER
                   TO EVALUATE TURNER FOR CONTEMPORARY COMPETENCY

          TO THE HONORABLE JUDGE OF THE 268TH DISTRICT COURT:

                   The State of Texas, by and through its District Attorney, 268th Judicial

          District, hereby requests the Court to reconsider its order to have the convicted

          person, Albert James Turner, evaluated for his contemporary competency to stand

          trial, specifically to be able to assist his counsel at a retrospective competency jury

          trial.


                                                    I.


                   Turner was duly convicted by a jury of capital murder, killing his wife and

          mother-in-law in the same criminal transaction. In accordance with the jury's

          answers to the special issues, this Court sentenced Turner to death in accordance with

          law. The Court of Criminal Appeals abated Turner's appeal and remanded this case

          to this Court to "first determine whether it is presently feasible to conduct a

          retrospective competency trial, given the passage of time, availability of evidence,
                                                                                *   ' L~. i» L>



                                                    1                      'ON JUL-1 PM ^28


                                                                             CLERK DISTRICT COURT, 1
                                                                               FORT BEND CO.. TX ^
and any other pertinent considerations." Turner v. State, 422 S.W.3d 676, 696 (Tex.
Crim. App. 2013). If a retrospective competency trial is feasible, this Court "shall

proceed to conduct such atrial in accordance with Chapter 46B, Subchapter C, ofthe
Code of Criminal Procedure." Id. at 697. The Court ofCriminal Appeals did not
require this Court to first determine whether Turner is presently competent to stand
trial.


                                         II.


         At a hearing on May 30, 2014, Turner's attorney, Robert Morrow, urged the

Court to have Turner examined for his contemporary competency to stand trial. Mr.

Morrow argued that under Greene v. State, 264 S.W.3d 271 (Tex. App.-San Antonio,

2008, pet. refd), Turner's contemporary competency was relevant to the

determination of whether a retrospective competency hearing is feasible.

         In Greene, the San Antonio Court of Appeals "ordered the trial court to

conduct aretrospective competency inquiry into Greene's competency." 264S.W.3d

at 272. The trial court "ordered Greene to undergo a psychiatric evaluation to

determine whether he was competent to participate in his retrospective competency
determination." Id. Astate psychiatrist determined that Green was not competent to

proceed and the "retrospective competency inquiry was again postponed

indefinitely." Id. The court of appeals remarked that Greene was "expected to
remain incompetent for the indefinite future." Id.

       The fact that Greene is presently unable to proceed with any judicial
       proceedings nearly three years after his conviction is problematic
       because his current mental condition is expected to continue
       indefinitely. Clearly, Greene's ability to assist his trial attorney will be
       critical to the outcome of issues to be addressed at the retrospective
       competency determination and he should not bedeprived ofhis right to
       assist counsel. However, waiting for Greene to come to a point where
       he could actually assist his trial attorney could prove to be an exercise
       of futility since Greene has been unable to maintain a level of
       competency for any significant period of time since his conviction.
       Greene's fluctuating mental condition, combined with the mounting
       passage of time, suggests that a retrospective competency inquiry is
       simply not feasible in this case.

      Given that Greene's present incompetency is expected to continue
      indefinitely, we conclude that a retrospective competency inquiry isnot
       feasible and hold that Greene is entitled to a new trial in the interest of
      justice. See Tex. R. App. P. 43.3, 43.6. Accordingly, thejudgment of
      the trial court is reversed and the cause is remanded to the trial court for
      a new trial.


Grmz, 264 S.W.3d at 273.

      The State filed a petition for discretionary review; however, the issues raised

did not ask whether the court of appeals erred in holding that Greene has a right to

assisthistrialattorney at a retrospective competency hearing, butfocused onwhether

the trial court had failed to conduct an informal inquiry in the first place.1


      1      The State obtained a copy ofthe petition filed on June 13,2008, by the
Bexar County District Attorney's Office. Three grounds were raised:

1.    Whether the Court of Appeals applied an incorrect standard of review to the

                                           3
                                          III.


      The Greene court's requirement that adefendant becompetent toassist counsel

at theretrospective competency is unsupported by authority. The Court of Criminal

Appeals, as in this case, has never included a defendant's contemporary competency

as a factor to consider in determining whether a retrospective competency hearing is

feasible. See, e.g., Hawkins v. State, 660 S.W.2d 65, 84-85 (Tex. Crim. App. 1983);

Brandon v. State, 599 S.W.2d 567,573-74 (Tex. Crim. App. 1979), vacated on other

grounds 453 U.S. 902 (1981) (noting some ofthe difficulties inholding a retroactive

determination of competency, including "passage of time, present recollection of

expert witnesses who testified atthe original hearing, and ability ofthe judge and jury

to observe the subject of their inquiry," but finding that "[retrospective

determinations are possible depending upon the facts ofeach case and the quality and

quantity of evidence available").


      appellant's complaint thatthe trial court failed to conduct an informal inquiry
      pursuant to Article 46B.004(c).

2.    Did the Court of Appeals err by failing to recognize the trial court conducted
      an "informal Inquiry" pursuant to Texas Code ofCriminal Procedure article 46
      B.004(c)?

3.    Whether the Court of Appeals's finding that the trial court did not conduct an
      "informal inquiry" implicitly imports a high degree of formality not intended
      by the Legislature when it created the new "informal inquiry" component of
      Article 46B.004(c) in the Code of Criminal Procedure.
       The State has not found a case from the high court of any other jurisdiction

requiring adefendant to be presently competent to assist counsel at aretrospective or
nunc competency hearing. See e.g., Blakeney v. United States, 11 A.3d 328, 349

(D.C. Cir. 2013) (relevant to determining the feasibility ofapostjudgment hearing on
a defendant's mental competence are: "(1) [t]he passage oftime, (2) the availability
ofcontemporaneous medical evidence and prior competency determinations, (3) any
statements bythe defendant inthe trial record, and (4) the availability of individuals

and trial witnesses, both experts and non-experts, who were in a position to interact

with [the] defendant before and during trial"); People v. Ary, 246 P.3d 322, 329 n.3

(Cal. 2011), cert, denied 132 S.Ct. 136 (2011) (same); Edwards v. State, 902 N.E.2d

821, 826 (Ind. 2009) (same); Maynard v. Boone, 468 F.3d 665, 674-75 (10th Cir.

2006), cert, denied 549 U.S. 1285 (2007) (same); United States v. Collins, 430 F.3d

1260,1267(lOthCir.2005)(same); Johnsonv. Commonwealth, 103 S.W.3d687,693

(Ky. 2003), cert, denied540 U.S. 986 (2003) (same); State v. Sanders, 549 S.E.2d 40,

54 (W.Va. 2001) (same).

      At least the Fourth and Ninth Circuit Courts of Appeals have found that the

defendant has due process and fair trial constitutional rights to be present at a

competency hearing. Sturgis v. Goldsmith, 796 F.2d 1103,1108-09 (9th Cir. 1986),

accord United State v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992). This finding
 is largely based on the Ninth Circuit's observation in Sturgis that in three ofthe five
 competency hearings held in the case, the defendant was present and was found
incompetent. Sturgis, 796 F.2d at 1109. When the defendant was absent, he was
found competent. Id. The Ninth Circuit held, that a defendant has a"constitutional

right to be present at every stage ofthe trial where his absence might frustrate the
fairness ofthe proceedings." Sturgis, 796 F.2d at 1108,1109. The recognition ofthe
constitutional right to be present at a competency hearing was not based on the
defendant's contemporary competency.

       "[I]t is contradictory to argue that a defendant may be incompetent, and yet
knowingly or intelligently 'waive' his right to have the court determine his capacity
tostand trial." Pate v. Robinson, 383 U.S. 375,384 (1966). Likewise, since Turner's

trial counsel argue that Turner was not competent during the trial, itis contradictory
to argue that Turner must be contemporaneously competent to assist them at a

retrospective hearing. A defendant's competency can be variable. If this Court

follows Greene, Turner may have been competent at trial, but if one ofthe experts
finds Turner incompetent now, a new trial will be ordered.

      While certain trial-type rights must be afforded at a competency hearing,

contemporary competency is not one of them. See Tex. Code Crim. Proc. art.

46B.006 ("defendant is entitled to representation by counsel at any court-ordered
competency evaluation andduring anyproceeding oncompetency"); Tex. Code Crim.

Proc. art. 46B.008 (Texas Rules of Evidence apply to a competency trial); see also

e.g., United States v. Jent, No. No. 6: 13-26-DCR-02, 2014 WL 320582, *2

(E.D.Ky. Jan 29, 2014) (18 U.S. C. § 4247(d) governs the competency hearing, and

assures certain trial-type rights, including the right to counsel, the right to confront

and cross-examine witnesses, and the right to participate in the hearing).

                                         III.


         The State has found two cases directly addressing the defendant's right to be

competent at a retrospective competency hearing, Ryder v. State, 83 P.3d 856,870-71

(Okla. Crim. App.), cert, denied 543 U.S. 886 (2004) (death penalty case); andState

v. McRae, 594 S.E.2d 71, 79 (N.C. Ct. App.), pet. denied 599 S.E.2d 911 (N.C.

2004).

         In Ryder, the defendant was sentenced to life for one murder and death for

another. 83 P.3dat 860. After hearingoral argument on direct appeal, the Oklahoma

Court of Criminal Appeals remanded the case to the district court to determine

whether a retrospective hearing on the defendadnt's competency at the time of the

trial. Id. On appeal after theretrospective competency determination, Ryderclaimed

"the trial court erred in failing to hold a hearing to determine his contemporary

competency prior to proceeding with the retrospective competency determination."
Ryder, 83 P.3d at 870. Ryderargued that undera state statutethat defined "criminal

proceeding" as "every stage of a criminal prosecution after arrest and before

judgment, including, but not limited to, interrogation, lineup, preliminary hearing,
motion dockets, discovery, pretrial hearings and trial," the retrospective competency
hearing should have been "suspended pending his contemporary competency." Id.
       The Oklahoma Court of Criminal Appeals noted its prior holding that "[a]
competency hearing is a special proceeding for the purpose of ensuring full
compliance with due process requirements, but itself is not a criminal prosecution."
Ryder, 83 P.3d at 870 (quoting Rogers v. Lansdown, 829 P.2d 687,688 (Okla. Crim.

App. 1992). The court then summarily held, "As the retrospective competency
hearing in this case occurred after judgment and sentencing, it is not a criminal

proceeding that must be suspended pending determination of contemporary
competency." Ryder, 83 P.3d at 871.

      In McRae, on appeal from a retrospective competency determination, McRae

asserted that "the trial court erred when it found that defendant was competent to

proceed at the 7 June 2001 retrospective competency hearing," and in proceeding
without the presence ofthe defendant inviolation of his statutory and constitutional

rights. Id., 594 S.E.2d at 79. The court noted that the purpose ofthe competency

statutes "istodetermine whether defendant isorwas capable tostand trial." Id. "Our
Supreme Court has held that these hearings "[do] not implicate defendant's

confrontation rights and [do] not have a substantial relation to his opportunity to
defendant." Id. (quoting State v. Davis, 506 S.E.2d 455, 466 (N.C. 1998), cert,
denied 526 U.S. 1161 (1999)). "Therefore, whether or not defendant was competent
at the 7 June 2011 retrospective competency hearing does not implicate his
constitutional or statutory rights." McRae, 594 S.E.2d at 79.

                                        IV.


      The State has not found acase where the Texas Court ofCriminal Appeals has

addressed adefendant's contemporary competency to assist counsel at aretrospective
hearing orthe implication ofFifth orSixth Amendment trial rights.

      Inthis case, Turner's contemporary competency has little value asthe evidence

of his alleged incompetency during his jury trial is based largely on the opinions of

his trial counsel-Pat McCann, Tyrone Moncriffe, mitigation specialist and counsel

Amy Martin, and appellate attorney Robert Morrow. As amply spread in the record,

Turner believed hewas competent. His recollection of his competency to stand trial

will not be of assistance to his attorneys, who believed he was incompetent.
       WHEREFORE, PREMISES CONSIDERED, the State requests that the Court

reconsider its order for each party topropose an expert to determine Turner's present

competency to stand a jury trial to determine his competency at the time of his trial,

and to find that more than ample evidence by which a retroactive competency trial is

feasible.


                                       Respectfully submitted,

                                       John F. Healey, Jr.
                                       SBOT# 09328300
                                                  torney, 268tlf7Udicial District


                                       Fred Felcman
                                                               afr i^l^'f
                                       SBOT# 06881500
                                       First Assistant District Attorney


                                       GaiUCikawa McConnell
                                       SBOT 11395400
                                       Assistant District Attorney
                                       301 Jackson Street, Room 101
                                       Richmond, Texas 77469
                                       (281) 238-3205 / (281) 238-3340 (fax)
                                       Gail.McConnell@fortbendcountytx.gov




                                         10
                        CERTIFICATE OF SERVICE

      I hereby certify that a copy of the State's motion for reconsideration has be

served on Mr. Robert Morrow, attorney for Albert Turner, byfacsimile transmission

to 832-813-0321, and via email on July 1, 2014.


                                            Gail'^Kikawa McConnell




                                       11
Exhibit E
10-OCR-06*233
ORDER
Order
3111371


                                    CAUSE NO. 10-DCR-054233HC1


                                                                      IN THE 268TH JUDICIAL
          EX PARTE
                                                                         DISTRICT COURT OF
          ALBERT JAMES TURNER
                                                               FORT BEND COUNTY, TEXAS

                                                    ORDER


                 On this day, the Court considered the State's motion for reconsideration of its

          order to appoint experts to evaluate Turner's contemporary competency.

                 The Court hereby sets the State's motion for ahearing on July ^_^ 2014, at


                 The Co                            aluations of Turner pending th^jecicion of the

          Court uiilUe Staled ii            reconsideratic
                                                                         ^
                                                   icl-Clqrk in s^nd fl rnpy r>f thie mvW TnrporV

          attorney, Rubeft-OTorrow, nnri tothe fitat6(attcnliuii Ajjslslalll District Attuuicy Gail
            IcConnell).

                Signed on July P"        , 2014.




                                                                                   FILED
                                                                              2AIUUL-I PH ii: 28

ROUTED TO COURT 7-=^'HU                                                         CLERK.DISTRICT COURT
 RT'DTOD. CLERK V^lHlt                                                           FORT BEND CO.. TXU-
Exhibit
  H
In re McCann, 422 S.W.3d 701 (2013)


                                                                            With respect to the requirement for mandamus
                                                                            that the act sought is purely ministerial, the
                      422 S.W.3d 701
                                                                            relator must have a “clear right to the relief
            Court of Criminal Appeals of Texas.
                                                                            sought,” meaning that the merits of the relief
                In re Patrick McCANN et al.                                 sought are beyond dispute.

       Nos. AP–76998, AP–76999.           |    Nov. 20, 2013.               2 Cases that cite this headnote

Synopsis
                                                                      [3]   Mandamus
Background: Death-sentenced client's defense attorney filed
                                                                                 Nature and existence of rights to be
petition for writ of mandamus seeking to compel 268th
                                                                            protected or enforced
District Court, Fort Bend County, Brady Elliot, J., to overturn
order holding attorney in contempt for refusing to turnover                 To show a clear right to the relief sought, as
client's file to court appointed postconviction counsel.                    required to obtain mandamus relief, a relator
                                                                            must show that the facts and circumstances of
                                                                            the case dictate but one rational decision under
                                                                            unequivocal, well-settled and clearly controlling
[Holding:] The Court of Criminal Appeals, Hervey, J., held                  legal principles.
that client, not his trial attorney, owned client's file, and thus,
attorney could not be compelled to turn over client's file to               1 Cases that cite this headnote
appointed postconviction counsel without client's consent.
                                                                      [4]   Mandamus
Writ of mandamus conditionally granted.                                        Nature of questions involved
                                                                            The court may grant relief in a mandamus case
Price, J., filed dissenting opinion.                                        based on a well-settled, but rarely litigated point
                                                                            of law.
Womack, J., dissented.
                                                                            Cases that cite this headnote


                                                                      [5]   Prohibition
 West Headnotes (8)
                                                                                Nature and scope of remedy
                                                                            Prohibition
 [1]      Mandamus                                                              Existence and Adequacy of Other Remedies
             Remedy at Law
                                                                            Prohibition relief is available only if the relator
          Mandamus                                                          shows that he has a clear right to the relief sought
             Nature of acts to be commanded                                 and no other adequate legal remedy is available.
          Mandamus relief may be granted if a relator
          shows that: (1) the act sought to be compelled is                 1 Cases that cite this headnote
          purely ministerial, and (2) there is no adequate
          remedy at law.                                              [6]   Mandamus
                                                                               Jurisdiction and authority
          1 Cases that cite this headnote
                                                                            In an ordinary case, a petition for writ of
                                                                            mandamus should first be presented to a court of
 [2]      Mandamus                                                          appeals unless there is a compelling reason not
               Nature and existence of rights to be                         to do so.
          protected or enforced
          Mandamus                                                          Cases that cite this headnote
             Nature of acts to be commanded



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
In re McCann, 422 S.W.3d 701 (2013)


                                                                    (“OCW”) to handle Turner's postconviction writ. As part of
 [7]     Attorney and Client                                        its investigation, OCW asked Turner to authorize the release
             Files of attorney or client                            of his trial file from McCann. Turner refused to sign the
         Death-sentenced client, not his trial attorney,            release because OCW is a “state agency,” 1 and he wanted to
         owned client's file, and thus, attorney could              speak with his sister before moving forward. Lacking Turner's
         not be compelled to turn over client's file                authorization, McCann refused to release the file believing
         to appointed postconviction counsel without                that his client was invoking his right to keep his privileged
         client's consent and would have been violating             information confidential.
         his fiduciary duty to client if he had done so.
                                                                    In response, OCW filed a motion asking the trial court to order
         1 Cases that cite this headnote
                                                                    McCann to turn the *703 file over. After a hearing, 2 the
                                                                    trial court ordered trial counsel to relinquish Turner's trial file,
 [8]     Attorney and Client                                        and McCann refused. He then filed a motion in this Court for
             Files of attorney or client                            leave to file petitions for writs of mandamus and prohibition.
         The client's file belongs to the client.                   While McCann's motion was pending, OCW successfully
                                                                    withdrew as Turner's habeas counsel. Subsequently, we
         Cases that cite this headnote
                                                                    dismissed McCann's motion as moot because OCW, a “state
                                                                    agency,” no longer represented Turner. McCann v. Elliot,
                                                                    Nos. WR–76,984–01, WR–76,984–02, 2012 WL 752612
                                                                    (Tex.Crim.App. Mar. 7, 2012) (per curiam) (not designated
Attorneys and Law Firms                                             for publication).

*702 Casie Gotro, Houston, TX, Lisa C. McMinn, State's
                                                                    The trial court then appointed new habeas counsel,
Attorney, Austin, for Relator.
                                                                    James Rytting, to represent Turner in his postconviction
                                                                    application, 3 and Rytting, like OCW, sought Turner's trial
                                                                    file for investigatory purposes. Rytting stated that he visited
                          OPINION
                                                                    Turner twice in person after his appointment, and he agreed
HERVEY, J., delivered the opinion of the Court in                   that McCann's characterization of Turner was correct in that
which KELLER, P.J., MEYERS, JOHNSON, KEASLER,                       Turner did not want the file turned over. 4 Rytting also
COCHRAN, and ALCALA, JJ., joined.                                   explained that, based on his visits with Turner, if McCann
                                                                    gave the file to Turner, Rytting would never see it. For his
Relator, Patrick McCann, seeks writs of mandamus to                 part, McCann continued to refuse to relinquish the trial file
overturn orders of the trial court directing him to relinquish
                                                                    based on his understanding of his client's wishes. 5 In a
his former client's trial file to successor counsel and holding
                                                                    second hearing, the trial court ordered McCann to turn over
him in contempt for his failure to do so. He also seeks a writ of
                                                                    his file again. After failing to comply with the trial court's
prohibition to disallow the trial court from enforcing its order
                                                                    second order, the court found McCann in contempt.
compelling him to turn the file over. We will conditionally
grant Relator relief on his petition for writs of mandamus and
                                                                    On January 7, 2013, this Court granted a Motion for
dismiss his petition for a writ of prohibition.
                                                                    Emergency Relief staying enforcement of the trial court's
                                                                    orders to turn over the file and finding McCann in contempt.
                                                                    In re McCann, No. WR–76,984–01 (Tex.Crim.App. Jan. 7,
                     I. BACKGROUND                                  2013) (per curiam) (not designated for publication). We then
                                                                    filed and set the petitions and ordered the parties to brief the
Albert James Turner was charged with capital murder. At
                                                                    following three issues:
trial, he was represented by Patrick McCann and Tyrone
Moncriffe. In June 2011, Turner was found guilty and                  1. To whom does a client's physical file belong?
sentenced to death. The trial court appointed counsel for
Turner's direct appeal and the Office of Capital Writs                2. If the file belongs to the client (the defendant in the
                                                                      underlying case here), what are the possible consequences


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
In re McCann, 422 S.W.3d 701 (2013)


   *704 should the client refuse to turn over the file to            In an ordinary case, a petition for writ of mandamus “should
  subsequent counsel?                                                first be presented to a court of appeals unless there is
                                                                     a compelling reason not to do so.” Padilla v. McDaniel,
  3. If the file belongs to the client and the client is unable or   122 S.W.3d 805, 807–08 (Tex.Crim.App.2003) (per curiam)
  unwilling to decide whether to turn over the file, to whom         (citing TEX.R.APP. P. 52.3(e)). However, the mandamus
  does that decision fall (e.g. former counsel, subsequent           action was properly filed directly in this Court because this is
  counsel, trial judge, or guardian appointed for that issue)?       a capital-murder case in which the death penalty was assessed.
                                                                     See Padilla, 122 S.W.3d at 806–07.
In re McCann, Nos. AP–76,998 & AP–76,999, 2013 WL
1149840, at *1 (Tex.Crim.App. Mar. 20, 2013) (per curiam)
(not designated for publication). The Court received Rytting's
court-ordered brief on April 19, 2013. McCann never                                       III. DISCUSSION
submitted a brief on the merits, and the State Bar of Texas
filed an amicus brief.                                               [7]    [8]   To whom does a client's file belong? The client's
                                                                 file belongs to the client. 6 In 1918, the Texas Supreme Court
                                                                 recognized explicitly that an attorney is an *705 agent of
                                                                 his client and implicitly that a client owns the contents of
   II. WRITS OF MANDAMUS AND PROHIBITION
                                                                 his or her file. See Thomson v. Findlater Hardware Co., 109
 [1] [2] [3] [4] Mandamus relief may be granted if aTex. 235, 237, 205 S.W. 831, 832 (Tex.1918). Later, we
relator shows that: (1) the act sought to be compelled is        expressly reaffirmed that a client owns the contents of his
purely ministerial, and (2) there is no adequate remedy at       or her file. 7 See Burnett v. State, 642 S.W.2d 765, 769, n.
law. In re State ex rel. Weeks, 391 S.W.3d 117, 121–22           10 (Tex.Crim.App.1983) (citing Thomson, 205 S.W. at 832)
(Tex.Crim.App.2013). With respect to the requirement that        (“[W]hen all is said and done, the tape recording, as with
the act sought is purely ministerial, the relator must have      deeds, notes, vouchers, documents and papers of a client,
a “clear right to the relief sought,” meaning that the merits    is the property of [the client]”). Neither McCann nor the
of the relief sought are “beyond dispute.” See Winters v.        State has referred to our holding in Burnett, but the amicus
Presiding Judge of Criminal Dist. Court No. Three of Tarrant     curiae brief filed by the State Bar of Texas cites Burnett for
Cnty., 118 S.W.3d 773, 775–76 (Tex.Crim.App.2003). To            the true, but inapplicable, proposition that the right to claim
show “a clear right to the relief sought,” a relator must show   or waive the attorney-client privilege belongs to the client,
that the facts and circumstances of the case “dictate but        his guardian, or his conservator. Amended Brief of Amicus
one rational decision ‘under unequivocal, well-settled ... and   Curiae State Bar of Texas, Nos. AP–76,998 & AP–76,999, at
clearly controlling legal principles.’ ” Weeks, 391 S.W.3d at    6–7; see Burnett, 642 S.W.2d at 770. Today we reaffirm that
122. However, we have also noted that, although an issue         a client owns the contents of his or her file. Rytting advances
may be one of first impression, it does not necessarily follow   a bevy of arguments as to why a client's file, or part of a
that the law is not well-settled. Id. It is a small step then to client's file, does not belong to the client, and to support his
hold that, this Court may grant relief in a mandamus case        arguments, he cites a number of sources. However, as we
based on a well-settled, but rarely litigated point of law. See  explain, each of Rytting's arguments is unpersuasive. 8
id. Regarding the requirement of an adequate remedy at law,
we have held that even if a relator has a remedy at law, that    First, Rytting argues that *706 Texas Disciplinary Rule
relator can show that no adequate legal remedy exists at law
                                                                 of Professional Conduct 1.15(d) 9 limits a client's interest
if the remedy is “so uncertain, tedious, burdensome, slow,
                                                                 in his or her own file to a possessory right to demand a
inconvenient, inappropriate, or ineffective as to be deemed
                                                                 copy of the file, and even that right is qualified, he asserts,
inadequate” Id. (quoting Greenwell v. Court of Appeals
                                                                 because an attorney is allowed to withhold a client's papers
for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648–49
                                                                 to enforce payment of fees in the form of an attorney
(Tex.Crim.App.2005)).
                                                                 lien. TEX. DISCIPLINARY RULES PROF'L CONDUCT
                                                                 R. 1.15(d), reprinted in TEX. GOV'T CODE, tit. 2, subtit.
 [5] [6] Similarly, prohibition relief is available only if the
                                                                 G, app. A (Tex. State Bar R. art. X, § 9). These arguments
relator shows that he has a clear right to the relief sought and
                                                                 —that the client has a limited possessory interest in his
no other adequate legal remedy is available. See State ex rel.
                                                                 or her own file and that the attorney-lien language of the
Lykos v. Fine, 330 S.W.3d 904, 907 (Tex.Crim.App.2011).


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
In re McCann, 422 S.W.3d 701 (2013)


Disciplinary Rules creates a property right in favor of the          and control of the principal's property without the principal's
attorney—are not persuasive. First, Rule 1.15(d) of the Texas        permission absent circumstances inapplicable in this case
Disciplinary Rules of Professional Conduct speaks to only            (e.g., an attorney lien, incompetency). 14 This is true even
“papers and property to which the client is entitled ... [,]” and    if the client *708 decides, against his or her best interests,
it contemplates the retention of client papers only in the case      not to relinquish the trial file to subsequent counsel because
of a valid attorney lien, which has not been asserted here.          a legally competent client can define his or her own best
Second, Rytting's attorney-lien argument is a red herring and
                                                                     interests, and that decision will control. 15 Finally, Rytting
actually supports Relator's position. The language of Rule
                                                                     argues that if a client is unable or unwilling to decide if it is
1.15(d) allows an attorney to retain papers “relating to the
                                                                     in his or her best interest to release the trial file to successor
client” as allowed by law, if such retention does not prejudice
                                                                     counsel, then that decision lies with successor counsel as
the client in the subject matter of the representation. Id. The
                                                                     the “current attorney” for the client and not former counsel
language of the rule does not designate the owner of the
                                                                     or a guardian. However, the authorities cited by Rytting
“papers relating to the client”; rather it allows an attorney
                                                                     regarding attorney-client privilege are inapposite because, as
to assert an attorney lien on those papers. A lien is a “legal
                                                                     we have explained, property rights control the outcome of this
right or interest that a creditor has in another's property
                                                                     question, not privilege law or the Texas Disciplinary Rules of
” that usually lasts “until a debt or duty that it secures is
satisfied.” BLACK'S LAW DICTIONARY 933 (7th ed.1999)                 Professional Conduct. 16
(emphasis added). Thus, a lien, by its definition, is a transitory
interest in someone else's property and, therefore, the attorney     If an attorney has no reason to believe that his or her client
asserting such a lien never owns the property at issue, the          is legally incompetent, the client's decision not to release
client owns the file by implication (if the attorney does not),      his or her trial file is unassailable. However, if the attorney
                                                                     “reasonably believes that the client lacks legal competence[,]”
and Rytting's arguments must fail. 10 Next, Rytting eschews
                                                                     then the attorney “shall take reasonable action to secure the
property-right arguments in favor of asserting that ethical and
professional duties require a trial attorney to retain a copy of     appointment of a guardian or other legal representative....” 17
the trial file for the benefit of subsequent counsel in a death-     TEX. DISCIPLINARY RULES PROF'L CONDUCT R.
                                                                     1.02(g). *709 If a guardian or other legal representative
penalty case. 11 Specifically, Rytting cites Guideline 11.8 of
                                                                     has already been appointed, the client's attorney “should
the State Bar of Texas's Guidelines and Standards for Texas
                                                                     ordinarily look to that representative for decisions on behalf
Capital Counsel and Guideline 10.13 of the American Bar
                                                                     of the client.” Id. at 1.02(g) cmts. 12 & 13. Nevertheless, an
Association's Guide for the Appointment and Performance of
                                                                     attorney can seek to have an appointed guardian replaced if
Defense Counsel in Death Penalty Cases. The two guidelines
                                                                     he or she is not acting in the best interest of the client. See
are substantially similar. *707 12 Compare GUIDELINES                Urbish v. 127th Judicial Dist. Ct., 708 S.W.2d 429, 431–32
AND STANDARDS FOR TEXAS CAPITAL COUNSEL                              (Tex.1986) (orig.proceeding) (holding that, when considering
11.8 (State Bar of Tex.2006), with ABA GUIDELINES                    only the ward's best interests, a trial court can replace a
FOR THE APPOINTMENT AND PERFORMANCE OF                               guardian if it determines that the guardian has an adverse
DEFENSE COUNSEL IN DEATH PENALTY CASES                               interest to the ward; the decision of the trial court is reviewed
10.13 (2003). Rytting, however, neglects to cite Guideline           for an abuse of discretion). Thus, Rytting's argument that
12.1(F) of the Texas guidelines expressly limiting the ability       successor counsel's decision regarding his or her client's
of trial counsel to turn over a client's file to successor           file prevails over all other claims, including those of his
counsel without the consent of the client. 13 Nonetheless,           competent client or the client's guardian (if applicable) is
both guidelines are only persuasive authority, and they are          unsupportable and an incorrect statement of the law.
designed to safeguard a criminal-defendant's interests, not a
successor counsel's “right” to force trial counsel to retain,        In this case, the conflict is between Turner's trial and
and turn over, a client's file (or a copy) against the client's      postconviction attorneys. McCann, Turner's trial attorney, has
wishes. Thus, if the client makes a voluntary decision not to        declined to turn over the file based on his understanding that
turn over his or her file, a client's former counsel is obligated    his former client wants him to hold the file until otherwise
to refuse to provide a copy of the client's file to facilitate       directed. Rytting, Turner's postconviction attorney, seeks to
the work of successor counsel. This is because the agent             force McCann to turn over the file because he believes that it
(the client's former attorney) may not relinquish dominion           is in his client's best interests. Both attorneys have obligations



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
In re McCann, 422 S.W.3d 701 (2013)


under the Texas Disciplinary Rules of Professional Conduct:           his or her former client's last known wishes under these
McCann is obliged to honor his former client's wishes not to          circumstances—McCann should not turn over his former
reveal privileged information, and Rytting seeks to overturn          client's file, Judge Elliott did not have the authority (inherent
his appointed client's sentence of death in postconviction            or otherwise) to order McCann to violate his fiduciary duty
proceedings but is being prevented by his own client from             to Turner, 22 and Judge Elliott did not have the authority to
                       18
effectively doing so. McCann, however, has an additional              enforce that order by holding McCann in contempt for failing
burden based on the binding precedent of this Court under             to relinquish the file. Moreover, McCann has no adequate
Burnett, and as the agent and holder of his principal's trial         remedy at law because, although McCann could seek relief
file, to follow the wishes of his principal in disposing or           from the order of contempt through an application for writ of
retaining the property as the principal directs. 19 Assuming          habeas corpus, 23 that relief would not resolve the underlying
Turner is legally competent (as the trial court found in this         issue of *711 the trial judge's order compelling McCann to
case), he is entitled to choose not to turn over his trial file;      relinquish Turner's trial file. In addition, Rytting points to no
and McCann, as Turner's former counsel and agent, must                constitutional provision, statute, or caselaw, nor are we aware
honor that decision for the reasons that we have explained.           of any, that allows McCann to appeal the order of the trial
If, however, McCann, Rytting, or another interested party             judge compelling him to turn over the trial file. See Johnson
with standing believes that Turner is legally incompetent, that       v. Tenth Judicial Dist. Ct. of Appeals at Waco, 280 S.W.3d
person can seek to have a guardian appointed.                         866, 873 (Tex.Crim.App.2008). Thus, even if McCann has a
                                                                      remedy at law, it is not adequate under these circumstances.
Although the trial judge rejected repeated motions by
McCann to have Turner declared incompetent pretrial and at            In addition, because McCann has a clear right to relief,
trial, it may be in the client's best interests for Rytting to also   vacating the order of contempt and the order to relinquish
attempt to have a guardian appointed. But we acknowledge              Turner's trial file is a purely ministerial act. Therefore, we
that, before the appointment of a guardian is warranted, a            conditionally grant Relator relief on his petition for writs of
defendant must do more than simply misbehave; he or she               mandamus. We assume that the trial court will immediately
must be proven legally incompetent by a preponderance of the          comply with our order, and the writs of mandamus will issue
evidence. 20 See TEX.CODE CRIM. PROC. art. 46B.003(b).                only in the event that the judge should refuse to do so. 24
Moreover, the trial judge is correct that certain deadlines have
been triggered in this death-penalty *710 case that cause
Turner's decision to severely damage his chances of success
                                                                      PRICE, J., filed a dissenting opinion.
in postconviction proceedings, 21 but if Turner is competent
to stand trial, then his choice to undermine the ability of his       WOMACK, J., dissented.
postconviction attorney to represent him effectively may be a
poor one, but it is one the law allows him to make.                   PRICE, J., filed a dissenting opinion.
                                                                      Today the Court holds that, as between a lawyer and his client,
                                                                      the client owns the legal file that is in his lawyer's possession;
                                                                      that the client may dictate the disposition of that file; and
       IV. RELATOR IS ENTITLED TO RELIEF                              that the client's dictates override the express order of a sitting
                                                                      judge. I wholly agree with the Court that “[t]he client's file
Here, Turner is statutorily presumed competent, and he has
expressly been found competent by the trial court. Moreover,          belongs to the client.” 1 But I disagree that this holding
his last instructions to McCann were not to release his trial         suffices to dispose of the mandamus proceeding before us.
file unless directed to do so. After Turner told McCann to            In my view, the Court asks the wrong question. The right
not release his trial file, he declined repeatedly to sign a          question—the answer to which will properly dispose of the
release authorizing his trial file to be turned over to his           case before us—is whether, given that the file “belongs to the
appointed postconviction counsel despite his knowledge of             client,” the convicting court presiding over this capital habeas
the consequences of such an action.                                   corpus proceeding lacks all authority to order a disposition of
                                                                      that client's file that is at odds with the client's wishes. In my
Therefore, in light of this opinion—a client owns his or              view, there is no clear answer to that question to be derived
her trial file and a former attorney is obligated to follow           from any state precedent.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
In re McCann, 422 S.W.3d 701 (2013)


                                                                     ownership of his file notwithstanding, a “compelling reason”
The Court effectively disposes of the question of the                may justify “depriv[ing] a client of his or her property.” 7
convicting court's authority by summarily declaring that             Indeed, in George, the Texas Supreme Court did not question
Judge Elliott “did not have the authority (inherent or               the trial court's ultimate authority to order disclosure, but
otherwise) to order McCann to violate his fiduciary duty to          rather sought to describe the circumstances when, and the
Turner[.]” 2 The only precedent the Court is able to muster          extent to which, it would be appropriate to exercise that
in support of this declaration, however, simply establishes          authority. 8 Thus, simply to say that the file belongs to Turner,
that a trial court's authority extends only to the issuance of
                                                                     and that Turner, if he is competent, 9 may do what he wishes
“lawful” orders. 3 But, of course, the very question that the        with the file, does not answer the determinative question in
Court effectively begs is whether the convicting court's order       this case, which is: Given that the client owns the contents of
compelling McCann to turn over his client's file against his         his case file, does a convicting court lack all authority to issue
client's wishes was, indeed, “lawful.” If the Court must take        an order disposing of the file in a way that conflicts with the
this occasion to say what the law is for the first time, I fail to   client's expressed wishes? This question is anything but well-
understand how it can be said that the law up until now was so       settled.
“clear” that McCann is entitled to mandamus relief from the
convicting court's contempt order. For that reason, I believe        To the extent that the Court relies on ethical considerations
that mandamus relief should not lie.                                 to reach its ultimate conclusion, there is good reason to
                                                                     think that the answer to this question is: No, the authority
                                                                     of trial judges is not limited in this way. Professors Goode,
          McCann's Dilemma: “A Lawyer Shall                          Wellborn, *713 and Sharlot have concluded that “[t]he rules
                                                                     of professional conduct do not ... provide an independent
        Not ... Reveal Confidential Information” 4
                                                                     basis for refusing to answer questions during the course
An attorney's duty to maintain his client's confidences arises       of a ... criminal proceeding.” 10 That treatise also notes
from his ethical *712 obligations as a practitioner of the           that “the attorney-client privilege empowers a client to
profession of lawyering. 5 Both McCann and Rytting are               block the compelled disclosure of confidential attorney-client
attempting to satisfy what they perceive to be their respective      communications ... [while] the ethical obligation enjoins the
ethical duties, but face the vexing dilemma that those duties        lawyer from voluntarily revealing confidential information
cannot simultaneously be satisfied. McCann, for his part,            obtained while representing the client.” 11 The distinction,
feels that he is bound by his ethical duty to maintain client        in that discussion, between “compelled” and “voluntary”
confidences not to divulge confidential information over the         disclosures serves to highlight an important aspect of this
wishes of his client. Rytting feels that he is bound by his          case: McCann is not citing the Rules of Professional Conduct
ethical duty of effective representation to seek trial counsel's     for the proposition that he is ethically prohibited from
files—whether they contain confidential information or not           voluntarily turning over Turner's files. Were he to make such
—and examine them for purposes of preparing an application           an argument, I would be inclined to agree with him. Rather,
for writ of habeas corpus. Both lawyers, realizing the ethical       McCann is citing to the Rules of Professional Conduct for
quandary they are in, have laid their concerns at the feet of        the proposition that the trial judge has no authority to compel
the convicting court and asked for a ruling so that one or the       McCann to turn the files over to Rytting, nor even to order
other of them may be absolved of any ethical wrongdoing.             him to make a copy and turn that over. And this is where
What the Court essentially declares today is that the law            I think McCann's (and, by extension, the Court's) argument
unequivocally binds Judge Elliott to resolve this ethical            ultimately falters.
quandary in McCann's favor. I disagree.
                                                                     The Texas Disciplinary Rules of Professional Conduct
The bulk of the Court's analysis is devoted to answering the         explicitly envision that there will be occasions when a lawyer
following question: “To whom does a client's file belong?”           will face conflicting obligations from, on the one hand, a
The Court relies, inter alia, on the Texas Supreme Court's           court order, and, on the other, the Rules themselves. Rule
opinion in In re George to conclude that a client “owns              1.05(c)(4), for instance, states that “[a] lawyer may reveal
the contents of his or her file.” 6 I do not disagree with           confidential information ... [w]hen the lawyer has reason to
this conclusion. But George itself recognizes that, a client's       believe it is necessary to do so in order to comply with a court



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
In re McCann, 422 S.W.3d 701 (2013)



order [.]” 12 We have not, either today or at any other time           solely determine the extent of a trial judge's authority in
that I am aware of, explained what effect, if any, this provision      these circumstances. In both Burnett and George, the litigants
has on the authority of a trial judge to resolve an ethical            seeking to avoid respective court orders commanding them
                                                                       to dispose of their “property” in a certain fashion were
Catch–22 such as the one presented in this case. 13 True
                                                                       expected to assert, in addition to their property interests,
enough, the Rule states that a lawyer “may reveal,” not that he
                                                                       something else—some other definite legal protection or right
“must reveal.” But this simply means that one who voluntarily
                                                                       that actually limited the authority of the trial judge. In Burnett
disobeys a court order to turn over confidential material does
not violate the Disciplinary Rules of Professional Conduct—            this “something else” was the attorney-client privilege. 17
it does not mean that he does not violate the court order, that        In George the “something else” was the threat of an actual
the order is of no effect, or that the Rules altogether strip          conflict of interest. 18 In this case I see no *715 “something
the court of the authority to issue that order. This conclusion        else”—I see only a bare assertion of a property right, and
 *714 is especially apparent when Rule 1.05 is considered in           absolutely no argument as to how this property right is so
light of other provisions of the Texas Disciplinary Rules of           inviolable as to be totally impervious to court order. 19
Professional Conduct that make clear that the Rules govern
the profession of lawyering—not the authority of trial judges          Even if I have misread Burnett and George, I would remain
—and by their terms purport to extend no further. 14                   of the opinion that property law alone gives no “clear” or
                                                                       “settled” resolution to the case before us. There are still,
Moreover, to the extent that the Court relies on property-law          in my mind, too many unanswered questions to admit of a
considerations in reaching its ultimate conclusion, again there        such a clear resolution. For instance: The Court addresses at
is reason to think that the answer to (what I have called) the         length the wrongfulness of Judge Elliott's order to McCann
determinative question in this case would also cut against a           to turn over his client's physical file, but curiously glosses
grant of mandamus relief to McCann—that is, that property              over whether it would have been wrong, per Rytting's explicit
law by itself does not limit the authority of trial judges in the      request, to simply order McCann to relinquish a copy of the
way envisaged by the Court. In coming to the conclusion that           file. How do we know whether such an order would also
McCann's “burden based on the binding precedent ... under              violate Turner's property rights (that is, which authorities
Burnett ” is sufficiently weighty to render Judge Elliott's            provide a “clear” answer to this question)? Is it because
order unenforceable, the Court purports only to reaffirm our           the file is just a physical embodiment of what is, in effect,
holding in Burnett that “a client owns the contents of his or          Turner's intellectual property? How do we know? If Turner
her file.” 15 From there, the Court (correctly) recognizes that        has an intellectual property interest in the contents of the file,
the assertion of the attorney-client privilege is not implicated       how far does that interest extend? All the way? Less than all
in this case and then (incorrectly) surmises that the second           the way? How do we know? Does making a copy of the file
holding of Burnett can be disregarded.                                 and handing the copy to the client's current attorney violate
                                                                       that interest, whatever its extent? How do we know?
To the contrary, I find it significant that Burnett 's first holding
—according to the Court, that the client owns the contents             Again, I do not claim to have answers to these questions. I
of his or her file—did not dispose of the relevant issue in            am simply pointing out that the Court's disposition depends
that case. Indeed, the fact that the Burnett Court saw the need        upon, or at the very least suggests, the pre-existence of clear
to discuss the law of privilege after determining ownership            and definitive answers. Today the Court says for the first time
of the file indicates to me that property-rights considerations        what the law is in this area, but then treats its pronouncement
were, to say the least, insufficient by themselves to illuminate       as time-honored and long-established. Trial judges who find
the proper disposition of that case. After all, if the proposition     themselves the subject of our mandamus authority can only
that a competent client can exercise “unassailable” ownership          scratch their heads.
of his or her file were as true in Burnett as it seemingly is
today, 16 why bother, in that case, to discuss the attorney-
client privilege at all?                                                       Rytting's Dilemma: “A Lawyer Zealously
                                                                                     Asserts the Client's Position” 20
The reason, of course, is that a party's assertion of a
property right, without more, does not—and should not—



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In re McCann, 422 S.W.3d 701 (2013)


There was a time in our jurisprudence when this Court—and                        functions, a lawyer should zealously
others—recognized the “discretionary” nature of mandamus                         pursue clients' interests within the
relief. 21 This discretion, it was thought, existed even when                    bounds of the law. In doing so, a
the long-settled prerequisites for mandamus—a clear claim                        lawyer should be competent, prompt,
to relief and the absence of an adequate remedy at law—had                       and diligent. [P]ersonal involvement
                                                                                 in the problems of the disadvantaged
been met. 22 Perhaps it was in view of this discretion that
                                                                                 can be one of the most rewarding
the Court ordered the parties in this case to brief a question
                                                                                 experiences in the life of a lawyer.
that, on its face, appears not to be grounded in the law as
                                                                                 In representing a client, a lawyer
much as *716 the potential ramifications of Turner's own
                                                                                 shall not ... neglect a matter
self-defeating decision: “If the file belongs to the client (the
                                                                                 entrusted to the lawyer[.] Competent
defendant in the underlying case here), what are the possible
                                                                                 representation       contemplates      ...
consequences should the client refuse to turn over the file to
                                                                                 reasonable thoroughness in the study
subsequent counsel?” 23                                                          and analysis of the law and facts,
                                                                                 and reasonable attentiveness to the
In its haste to find error in Judge Elliott's decision to                        responsibilities owed to the client.
override McCann's refusal to turn over Turner's file to                          A lawyer should feel a moral or
Rytting, the Court fixates on the duties and dilemmas                            professional obligation to pursue a
facing McCann in his own decision whether to turn over                           matter on behalf of a client with
Turner's files, but wastes no ink to consider the dilemma                        reasonable diligence and promptness
faced by Rytting. The Court today does not even mention                          despite opposition, obstruction or
the “possible consequences” to Turner, notwithstanding the                       personal inconvenience to the lawyer.
interest it evinced in its earlier briefing order. Again, given the              [A] lawyer shall abide by a client's
“discretionary” nature of mandamus relief and the fact that                      decisions ... concerning the objectives
mandamus is available only in “extraordinary situations,” 24                     and general methods of representation,
I am puzzled by the Court's reticence in this regard. Whatever                   [but] [t ] he lawyer should assume
the reason, since the Court has not undertaken to describe                       responsibility for the means by
the consequences to Rytting and Turner should Judge Elliott's                    which the client's objectives are
order be overturned, I will.                                                     best achieved. Thus, a lawyer has
                                                                                 very broad discretion to determine
Rytting has an obligation—an ethical imperative—to review                        technical and legal tactics [.] The
McCann's files on Turner for any signs of ineffective                            advocate has a duty to use legal
representation at the trial level. This obligation is apparent                   procedure for the fullest benefit of
from a perusal through the admittedly nebulous and lofty                         the client's cause [.] The advocate's
expectations of the Disciplinary Rules of Professional                           task is to present the client's case with
Conduct:                                                                         persuasive force. 25

             Lawyers, as guardians of the law,
             play a vital role in the preservation                     *717 It is also apparent from a close study of the more
             of society. As advisor, a lawyer                         concrete expectations of the Guidelines and Standards for
             provides a client with an informed                       Texas Capital Counsel:
             understanding of the client's legal
                                                                                 The objective of these Guidelines is
             rights and obligations and explains
                                                                                 to set forth a state-wide standard of
             their practical implications. As
                                                                                 practice for the defense of capital cases
             advocate, a lawyer zealously asserts
                                                                                 in order to ensure high quality legal
             the client's position under the rules of
                                                                                 representation for all persons facing
             the adversary system. A lawyer acts
                                                                                 the possible imposition or execution of
             as evaluator by examining a client's
                                                                                 a death sentence by any State of Texas
             affairs and reporting about them to the
                                                                                 jurisdiction. Counsel at every stage
             client or to others. In all professional


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In re McCann, 422 S.W.3d 701 (2013)


           have an obligation to conduct a full                    and omissions will be attributed to the
           examination of the defense provided                     capital client and will follow the client
           to the client at all prior phases of                    throughout all remaining proceedings
           the case. This obligation includes                      in state and federal court. It is a
           at a minimum interviewing prior                         dereliction of habeas corpus counsel's
           counsel and members of the defense                      duty to simply acquiesce to a capital
           team and examining the files of                         client's insistence that he or she ...
           prior counsel. Counsel at every stage                   wants to challenge only the conviction
           of the case, exercising professional                    but not the sentence. Counsel must
           judgment in accordance with these                       also inspect the evidence and obtain
           Guidelines, should [c]onsider all legal                 the files of trial and appellate counsel,
           claims potentially available; and [t                    scrutinizing them for what is missing
           ]horoughly investigate the basis for                    as well as what is present. Habeas
           each potential claim before reaching a                  corpus counsel must demand on behalf
           conclusion as to whether it should be                   of the capital client all resources
           asserted; and [e]valuate each potential                 necessary to provide high quality legal
           claim in light of ... [t]he importance                  representation, to conduct a thorough
           of protecting the client's right against                investigation of both the conviction
           later contentions by the government                     and sentence, to procure documentary
           that the claim has been waived,                         evidence, and to retain experts. Habeas
           defaulted, not exhausted, or otherwise                  corpus counsel should consider every
           forfeited. Counsel who decide to                        legal claim potentially available, and
           assert a particular legal claim should                  thoroughly investigate the basis for
           [p]resent the claim as forcefully as                    each potential claim[.] 26
           possible, tailoring the presentation to
           the particular facts and circumstances
                                                      These are the expectations—the obligations—confronting
           in the client's case and the applicable
                                                      Rytting as he seeks access to McCann's files on Turner.
           law. Habeas corpus counsel must
           understand that the state habeas corpus
                                                      And this is the reality he faces: Investigating a client's
           proceeding is not a second direct
                                                      case beyond merely reading the direct appellate record—
           appeal. Direct appeal-like, record-
                                                      and reviewing trial counsel's case files in particular—is
           based claims are not cognizable in
                                                      an indispensable first step in *718 proving ineffective
           state habeas corpus and can be
                                                      assistance of counsel at the trial level. This is because
           fatal to the capital client. Counsel
                                                      “[a] substantial risk of failure accompanies an appellant's
           should not accept an appointment
                                                      claim of ineffective assistance of counsel on [a] direct
           if he or she is not prepared to
           undertake the comprehensive extra-         appe[llate] ... record.” 27 On an appellate record, this Court
           record investigation that habeas corpus    will presume that “[trial] counsel's conduct fell within the
           requires. [H]abeas counsel cannot rely     wide range of reasonable professional assistance”—and in
           on the work of, or representations         order to overcome this “strong presumption,” a claimant must
           made by, prior counsel to limit            “affirmatively demonstrate the alleged ineffectiveness” in the
           the scope of the post-conviction           appellate record. 28 But “[t]he record in a direct appeal may
           investigation. [C ]ounsel has a duty to    well contain a less than adequate inquiry into possible tactical
           conduct a searching inquiry to assess      reasons for various actions or omissions by counsel and
           whether any constitutional violations      may lack completely trial counsel's own explanations for his
           may have taken place, including            actions or inactions.” 29 Indeed, one of the crucial purposes
           ... ineffective assistance of trial ...    of habeas corpus proceedings is to supplement the appellate
           counsel. State habeas corpus counsel's     record so as to demonstrate trial counsel's ineffectiveness—
           lack of diligence, mistakes, missteps,     in a way that the appellate record standing by itself typically



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In re McCann, 422 S.W.3d 701 (2013)


                                                                        —which will set the tone of his entire post-conviction pursuit
will not. And while it might be said that Rytting could simply
                                                                        of relief—with claims of the ineffectiveness of trial counsel
depose, seek affidavits from, or otherwise interview McCann
                                                                        that lack meaningful substantiation. Being purely record-
to get the information he needs to prove ineffectiveness
                                                                        based, these claims would probably fail to “allege[ ]facts that,
outside the direct appellate record, the Guidelines specifically
state that “habeas counsel cannot rely on the work of, or               if true, might entitle him to relief.” 36 If this is the case, he will
representations made by, prior counsel to limit the scope               most likely be denied an evidentiary hearing to develop the
of the post-conviction investigation.” 30 To do so, in other            facts—since he has been unable to allege concrete facts. 37
                                                                        Instead, he will limp into federal court with what little fact-
words, would be to compromise an ethical duty. 31
                                                                        development he could muster from his investigation sans
                                                                        trial counsel's files, and this meager federal review will avail
Even beyond filling in the important details of ineffectiveness
                                                                        him little, if anything. And at the end of it all, Turner may
claims that are hinted at within—but not apparent from—the
                                                                        very well be executed without ever having a genuine shot at
record, 32 habeas counsel's review of *719 trial counsel's
                                                                        proving that his trial counsel's assistance was deficient.
files serves other important purposes in the preparation of
an initial application for state habeas corpus relief. It can
                                                                        Judge Elliott believed it possible to resolve McCann and
reveal whole swaths of a client's circumstances that, were they
                                                                        Rytting's ethical dilemma, and at the same time assure Turner
simply not presented at trial, this Court might presume were
                                                                        the “competent counsel” that Article 11.071 envisions, 38 by
left out for strategic purposes, but upon review of the file in its
                                                                        granting Rytting access to Turner's files. Perhaps his decision
entirety would be more properly characterized as instances of
                                                                        was overly paternalistic. Perhaps it was ill-advised. Perhaps
trial counsel's neglect or poor judgment—and potentially his
                                                                        it was even arguably incorrect as a matter of law (although
ineffectiveness. 33 Habeas counsel's review of trial counsel's
                                                                        I doubt it). Nevertheless, I am unwilling to subject a trial
files can, in addition, serve to aid the investigation of claims
                                                                        judge to the stigma of mandamus for a decision that was
unrelated to trial counsel's ineffectiveness. It can serve,
                                                                        merely arguably incorrect. Mandamus is only appropriate
for example, as a starting point for looking into whether
                                                                        when a relator's claim for relief is “clear”—not arguable—
the State possesses undisclosed exculpatory evidence, 34 or             and a claim for relief can only be “clear” when the law
whether evidence exists that might establish the client's actual
                                                                        undergirding the claim is “well-settled.” 39 I think that the
            35
innocence. Moreover, such a review can assist counsel to                law in this area is demonstrably unsettled; at the very least it is
separate specious claims of all kinds from those with potential         insufficiently well settled to justify the extraordinary measure
merit. In short, reviewing trial counsel's files provides an            of mandamus. And even if I were wrong in this regard, I
array of advantages to initial state habeas corpus counsel by           would think it inappropriate to exercise *720 our discretion
aiding him in his considerable investigatory task in addition           so as to prevent a trial judge from saving a capital habeas
to providing substance and depth to claims that might not               applicant—even one who has not been declared incompetent
otherwise stand a chance at succeeding.                                 —from his own manifest paranoias. I respectfully dissent.

So should the Court overturn Judge Elliott's order today,
Turner may have to submit his initial state habeas application


Footnotes
1       Based on the record, Turner's concern about OCW was that its employees are not paid by a political subdivision (usually counties),
        as are indigent-defense attorneys. He was skeptical of lawyers from OCW representing him because they are employed and paid
        by the State of Texas.
2       At the hearing on whether Turner would sign the release, OCW asked Turner if it would make a difference if he were represented by
        someone unaffiliated with the State, and Turner responded that “[i]t just depends on, you know, the relationship. That would make
        a difference, yes, but that still wouldn't make my decision up for me.” He also emphasized his need to speak with his sister, who he
        believed was looking for an attorney to handle Turner's postconviction writ application.
3       Initially, the trial court appointed John E. Wright, but he declined the appointment due to his employment at the Regional Public
        Defenders for Capital Cases in Lubbock.




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In re McCann, 422 S.W.3d 701 (2013)


4     According to an affidavit signed by Rytting on February 6, 2013, Rytting had visited Turner in person at the Polunsky Unit twice
      and had attempted to meet him on other occasions. He also stated that Turner accepted file-release forms from him, and Turner told
      Rytting that he would think about executing them.
5     McCann's understanding of Turner's wishes stem from three separate incidents. The first incident was sometime before the hearing
      with OCW and McCann. At that time, McCann was discussing appellate counsel with his client when, according to McCann, Turner
      allegedly said, “I don't trust any of y'all. I don't want you to give them anything unless I approve it. My sister's going to hire me a
      lawyer. You keep the file until I tell you otherwise.”
          Later, Turner testified at the OCW–McCann hearing, and he stated that he would not sign the release, but he also indicated that
          he might be willing to sign it in the future. McCann took this as a continued refusal to turn the file over, while the trial judge was
          of the opinion that Turner was not refusing or agreeing to turn the file over.
          Finally, according to McCann, OCW asked him to write a letter to Turner about turning the file over, but whether this was before
          or after the hearing in which Turner testified is unclear. Nonetheless, McCann wrote the letter, but he stated that he never received
          a reply.
6     There is a split among courts that have considered this question. See generally Brian J. Slovut, Note, Eliminating Conflict at the
      Termination of the Attorney–Client Relationship: A Proposed Standard Governing Property Rights in the Client's File, 76 MINN.
      L.REV. 1483 (1992). Many jurisdictions follow the entire-file standard. That is, the client owns all of the documents within the client's
      file. Thus, a lawyer must relinquish the entire contents of the client's file upon request (assuming that there is no valid attorney lien).
      On the other hand, other jurisdictions follow the end-product standard that divides ownership between the client and the attorney.
      Id. at 1485.
7     In Burnett, the appellant, on direct appeal from her death sentence, argued that the trial court erred when it admitted into evidence
      a recorded pre-hypnotic interview between the appellant and a hypnotist hired by her attorneys. Burnett, 642 S.W.2d at 766–67.
      Before resolving the second question presented for our review—whether the attorney-client privilege prevented the admission of the
      tape into evidence—we first resolved the question of who owned the physical tape. In our analysis, we noted that the parties made
      “various characterizations” of the recording, including that the admission of the tape violated the appellant's attorney-client privilege,
      the work product of counsel, or the property rights of the hypnotist. However, we held that the recording, “as with deeds, notes,
      vouchers, documents and papers of a client,” belong to the client. We reached this holding due to the hypnotist's agency relationship
      with the appellant's attorneys who were in turn the appellant's agents. We also held that admission of the tape was error because
      the attorney-client privilege applied to exclude the tape from evidence. Id. at 769–70. However, because Turner's file has not been
      offered into evidence in this case, as the pre-hypnotic tape was in Burnett, today we need not address the privilege issue because
      it is not ripe for our review.
8     See, e.g., In re George, 28 S.W.3d 511, 516 (Tex.2000) (citing TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.15)
      (noting that “[t]he attorney is the agent of the client, and the work product generated by the attorney in representing the client
      belongs to the client”); Resolution Trust Corp. v. H––––, P.C., 128 F.R.D. 647, 648 (N.D.Tex.1989) (mem.op.) (holding that, under
      Texas law, the entire contents of a client's file belong to the client and the argument that “only another lawyer can be trusted with
      the file.... cannot be taken seriously....” because that practice “is contrary to the fiduciary and agency nature of the relationship
      between a client and an attorney.”); TEX. DISCIPLINARY RULES PROF'L CONDUCT; RESTATEMENT (THIRD) OF THE
      LAW GOVERNING LAWYERS (2000); GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL (State Bar of
      Tex.2006); GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY
      CASES (2003); TEX. COMM. ON PROF'L ETHICS, Ops. 395 (1979) (noting that an attorney who refuses to turn over a client's
      file is at risk of liability, even if asserting an attorney lien, because that attorney's actions may subsequently be deemed unethical
      and sanctionable), 411 (1984) (same), 570 (2006) (“A lawyer must, upon request, provide to a former client the notes of the lawyer
      from the lawyer's file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right
      such as a lawyer's lien, when the lawyer is required to withhold the lawyer's notes (or portions thereof) by court order, or when not
      withholding the notes (or portions thereof) would violate a duty owed to a third person or risk causing serious harm to the client.”);
      see also Smith v. State, 523 S.W.2d 1, 6 (Tex.Civ.App.–Corpus Christi 1975, writ ref'd n.r.e.) (sustaining disciplinary sanctions when
      an attorney claimed to assert an attorney lien in good faith on certain client files but was subsequently found by a unanimous jury
      to have withheld the file in bad faith).
9     Section (d) of Rule 1.15 states,
             Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests,
             such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property
             to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers
             relating to the client to the extent permitted by other law if such retention will not prejudice the client in the subject matter of
             the representation.



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         TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.15(d).
10    We also note that, to perfect an attorney lien, the attorney must possess the papers he or she purports to have a lien on to receive
      payment for services rendered. See Thomson, 205 S.W. at 832 (holding that, to perfect an attorney lien, there are two requirements:
      (1) the property must actually be in the possession of the attorney, and (2) the property must have come into the possession of the
      attorney in his or her character as an attorney at law). However, this case has been brought specifically to prevent Rytting from
      obtaining Turner's trial file; thus, it is impossible for Rytting to perfect an attorney lien under these facts.
11    We address Rytting's argument only to the extent that it would require trial counsel to keep a copy of a client's file for the future use
      of successor counsel despite the client's wishes to the contrary.
12    According to these guidelines, the duty to facilitate the work of successor counsel includes (1) maintaining the records of the case
      in a manner that will inform successor counsel of all significant developments relevant to the litigation, (2) providing the client's
      file, as well as information regarding all aspects of the representation, to successor counsel, (3) sharing potential further areas of
      legal and factual research with successor counsel, and (4) cooperating with such professionally appropriate legal strategies as may
      be chosen by successor counsel.
13    Section F of Guideline 12.1, “Duties of Trial Counsel After Conviction[,]” states the following:
            Trial counsel should cooperate with successor direct appeal, habeas and clemency counsel in providing relevant information to
            successor counsel, including trial counsel's prior representation files upon the client's consent, in order to maintain continuity
            of representation, and to assist future counsel in presentation of issues relevant to subsequent litigation efforts.
         GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 12.1(F) (State Bar of Tex.2006) (emphasis added).
14    RESTATEMENT (THIRD) OF AGENCY § 8.09 (“An agent has a duty to comply with all lawful instructions received from the
      principal and persons designated by the principal concerning the agent's actions on behalf of the principal.”); see Gen. Motors
      Acceptance Corp./Crenshaw, Dupree & Milam, L.L.P. v. Crenshaw, Dupree & Milam, L.L.P./General Motors Acceptance Corp.,
      986 S.W.2d 632, 636 (Tex.App.–El Paso 1998, pet ref'd) (citing Cooper v. Lee, 75 Tex. 114, 12 S.W. 483, 486 (1889)) (holding that
      a “fiduciary relationship exists between attorneys and clients as a matter of law” and that “an agent must obey the lawful directions
      of its principal”).
         While McCann's obligation not to relinquish Turner's trial file may have also stemmed from his duty of confidentiality under
         the disciplinary rules, there is a more fundamental reason why McCann was obligated not to release Turner's trial file: because
         Turner owns the contents of his file, and the trial court attempted to require McCann to violate the instructions of his client and
         principal to whom he has a fiduciary duty. See In re George, 28 S.W.3d at 516 (characterizing the attorney-client relationship as
         one of principal and agent); Resolution Trust Corp., 128 F.R.D. at 648 (stating that the argument that “only another lawyer can
         be trusted with the file.... cannot be taken seriously....” because that practice “is contrary to the fiduciary and agency nature of
         the relationship between a client and an attorney”); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199–200 (Tex.2002)
         (“Our courts have long recognized that certain fiduciary duties are owed by ... an attorney to a client.”) (footnotes omitted); see
         also RESTATEMENT (THIRD) OF AGENCY §§ 8.01, 8.05 (characterizing the principal-agent relationship as a fiduciary one,
         and stating that an agent specifically “has a duty (1) not to use property of the principal for the agent's own purposes or those of
         a third party; and (2) not to use or communicate confidential information of the principal for the agent's own purposes or those of
         a third party”); TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.5 & cmt. (the comment states, in part, that “[b]oth the
         fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation
         by the lawyer of confidential information of one who has employed ... the lawyer”). The outcome in this case may have been
         different if Turner had been found incompetent (a question we do not answer today) and if, during the period of his incompetency,
         a guardian was appointed to make decisions in Turner's best interest, including turning over his trial file to successor counsel
         despite Turner's protestations to the contrary.
15    This comports with the agency entire-file approach followed in Texas (i.e., all of the contents of a client's file belong to the client).
      See supra note 6. Also, an attorney is required to vigorously advocate for his or her client's best interests, which can be defined by
      the client, although that attorney may believe that his or her strategy will result in a better outcome for the client. However, a client's
      ability to define his or her own best interests may end when an attorney's duty under Rule 1.02(g) of the Texas Disciplinary Rules
      of Professional Conduct begins—when an attorney reasonably believes that the client's ability to make decisions in his or her best
      interest is compromised, the appointment of a guardian should be sought.
16    For example, the relevant passage from the Restatement (Third) on the Law Governing Lawyers states, “If a former lawyer with whom
      the client made a privileged exchange and a lawyer now representing the client disagree on whether to assert the privilege, as between
      them the current lawyer-agent determines whether to assert or waive the privilege.” RESTATEMENT (THIRD) ON THE LAW
      GOVERNING LAWYERS § 86, rpt. cmt. c (2003). The quoted passage merely contemplates who should prevail in a disagreement
      between a client's former and current attorney. It does not state that a client's current attorney can assert the privilege against the




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In re McCann, 422 S.W.3d 701 (2013)


      client's objections. Rytting also cites Weinstein's Federal Evidence and Federal Practice and Procedure for the same proposition, but
      as we have explained, that proposition is not persuasive under these circumstances.
17    Although competency has not been directly raised in this proceeding, the competency of Turner was raised numerous times by
      McCann at trial. At the January 4, hearing regarding turning over of the file, the following exchange took place:
            [RYTTING]: So you don't believe Mr. Turner has made an intelligent decision about turning over the files, therefore authorizing
            me to get your files?
            [McCANN]: I'm not a psychologist. I did my best to sit there and bring forth the fact that I believe that he suffers from something
            that prevents him from making capable decisions, but that was not the decision of the Court, and in fairness to the Court, during
            the hearings we had, the psychological testimony, although voluminous, was fairly gray on several topics because [Turner]
            refused to talk to the psychologist that we sent to him, including Dr. Almeida.
         Later in the same hearing, McCann testified that “I'm placed in a catch–22. I have a client who's invoking the privilege, who is
         still legally competent, and I can't turn that over, even in the face of a court order....” Rytting asked McCann what his basis was
         for concluding that Turner is currently legally competent, and McCann responded that “the Court has found him competent. Given
         that, his invocation of privilege is proper.” We agree that McCann is in a precarious position given that Turner, thus far, has been
         ruled competent and refuses to release his trial file.
18    In an affidavit authored by Rytting, he agreed that Turner would not relinquish his trial file, and the record shows that Turner refused
      to sign the release (i.e., the functional equivalent of refusing to turn over the file). Unless Turner signs the release or a guardian is
      appointed, Rytting is bound by Turner's decision, or indecision, as the case may be.
19    See supra note 14.
20    While we are sympathetic to the plight of Rytting as the postconviction attorney for a client who refuses to assist his own attorney,
      we decline to abdicate our duty under our mandamus jurisprudence by allowing a trial court to “save” a capital defendant from his
      “own manifest paranoias” when a trial court has found the defendant competent, and the defendant chooses not to release his trial
      file. See Dissenting Op. at 720. Moreover, it is entirely unclear how this Court could justify creating, or applying, an unheard of and
      totally unsupported exception to our mandamus jurisprudence allowing a trial court in a capital case to “save” a defendant who suffers
      from “his own manifest paranoias.” Furthermore, there is no clear limiting principle for such an exception. For example, would this
      exception properly apply to only mandamus proceedings, only cases in which the death penalty was assessed, or all cases in which a
      defendant suffers from his or her own manifest paranoias but is not incompetent? Also, it is not clear who would determine whether
      a defendant suffers from “manifest paranoias” or what the standard of review for such a conclusion would be.
21    In a death-penalty case, appellate timelines are of the utmost importance for at least two reasons. First, when the death penalty is
      assessed, a criminal defendant's interest in zealous representation is at its peak. Second, filing deadlines in capital felony cases are
      different than in other cases. The Texas Constitution and the Texas Code of Criminal Procedure state that capital cases in which the
      death penalty is assessed are appealed directly to the Court of Criminal Appeals. TEX. CONST. art. V, § 5(b); TEX.CODE CRIM.
      PROC. art. 37.071(h). In addition, Section 4(a) of Article 11.071 of the Texas Code of Criminal Procedure states that an application
      for a writ of habeas corpus must be filed “not later than the 180th day after the date the convicting court appoints counsel ... or not
      later than the 45th day after the date the state's original brief is filed on direct appeal with the court of criminal appeals, whichever
      date is later.” TEX.CODE CRIM. PROC. art. 11.071, § 4(a) (dealing with applications for writs of habeas corpus in capital cases
      in which the death penalty was assessed).
22    See Stearnes v. Clinton, 780 S.W.2d 216, 223 (Tex.Crim.App.1989) (orig.proceeding) (granting conditional mandamus relief). In
      Stearnes, we held that a trial court that acts without inherent power acts without authority, and that a relator satisfies “the first
      prerequisite for mandamus relief” when he or she shows that a trial court acted without authority. Id. Furthermore, under Section
      21.001 of the Texas Government Code, “[a] court has all powers necessary for the exercise of its jurisdiction and the enforcement
      of its lawful orders, including authority to issue the ... orders necessary or proper in aid of its jurisdiction.” TEX. GOV'T CODE §
      21.001(a). Neither order issued by the trial judge in this case was issued to enforce its jurisdiction, and we have not been directed to,
      nor are we aware of, any inherent or explicit authority authorizing the trial court to enter such orders.
23    Ex parte Thompson, 273 S.W.3d 177, 181 (Tex.Crim.App.2008) (holding that the Court of Criminal Appeal's original jurisdiction
      for writs of habeas corpus under the Texas Constitution allows it to review orders of contempt entered by district courts); see TEX.
      CONST. art. V, § 5(c); 13 TEX. JUR.3DContempt § 69 (2011).
24    We dismiss McCann's petition for writ of prohibition. See Weeks, 391 S.W.3d at 126 n. 43.
1     Majority Opinion at 704–05.
2     Id. at 710–11.
3     Id. at 710 n. 22.
4     See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05(b)(1) (“[A] lawyer shall not knowingly ... [r]eveal confidential
      information of a client or former client to ... a person that the client has instructed is not to receive the information[.]”).



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5     See TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶ 1 (“A lawyer is a representative of clients, an officer of the
      legal system and a public citizen having special responsibility for the quality of justice.... A consequent obligation of lawyers is to
      maintain the highest standards of ethical conduct.”).
6     Id. at 704–05 & n. 8 (citing In re George, 28 S.W.3d 511, 516 (Tex.2000)).
7     George, 28 S.W.3d at 516.
8     Id. at 515–16 (“Once they determine that a restriction [on disclosure] is necessary because an attorney has been disqualified for a
      prior, substantially related representation, some courts do not inquire into the work product itself. They automatically forbid any
      work product from being transferred [over the client's wishes] to the successor attorney ... This approach may be appropriate for
      cases in which the entire suit is based on improperly revealed confidential information ... But we believe that it is inappropriate for
      a general rule.”).
9     My concerns about the Court's conclusion are not dependent upon, nor do they stem from, any issues relating to Turner's present
      competency. To the contrary, irrespective of Turner's mental capacity to make decisions affecting his post-conviction pursuit of relief,
      my concerns relate only to what I perceive to be the unsettled state of the law.
10    Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF
      EVIDENCE § 503.3, at 411 (3d ed.2002).
11    Id. (emphasis added). The explanation in a previous edition was even more to-the-point: “Protection against non-compelled disclosure
      of a client's confidential communications to his attorney comes from the Texas Disciplinary Rules of Professional Conduct.” Steven
      Goode, Olin Guy Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE:
      CIVIL AND CRIMINAL § 503.2, at 327 (2d ed.1993) (emphasis added). See also Robert A. Pikowsky, Privilege and Confidentiality
      of Attorney–Client Communication Via E-mail, 51 BAYLOR L.REV. 483, 490–91 (1999) (“Of course, a professional who is called
      to testify in judicial proceedings cannot lawfully refuse to do so based exclusively on a duty of confidentiality in the absence of
      any recognized privilege. Unless a privilege exists as well, the court can properly require the professional's testimony.”); Mitchell
      M. Simon, Discreet Disclosures: Should Lawyers Who Disclose Confidential Information to Protect Third Parties Be Compelled to
      Testify Against Their Clients?, 49 S. TEX. L.REV. 307, 315 (2007) (“The key difference between confidentiality, which governs a
      lawyer's voluntary actions, and privilege is that privilege trumps a court's authority to compel testimony.”) (emphasis added).
12    TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05(c)(4) (emphasis added).
13    See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05 cmt. 22 (“[A] lawyer may be obligated by other provisions of
      statutes or other law to give information about a client. Whether another provision of law supersedes Rule 1.05 is a matter of
      interpretation beyond the scope of these Rules.”) (emphasis added).
14    See, e.g., TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶¶ 11–16 (“The[se] rules presuppose a larger legal context ...
      [which] includes court rules and statutes relating to matters of ... laws defining specific obligations of lawyers and substantive and
      procedural law in general. [* * *] These rules make no attempt to prescribe either disciplinary procedures or penalties for violation
      of a rule. [* * *] Violation of a rule ... does [not] create any presumption that a legal duty to a client has been breached ... The fact
      that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of disciplinary authority,
      does not imply that an antagonist in a collateral proceeding ... has standing to seek enforcement of the rule. Accordingly, nothing
      in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating
      such a duty. [* * *] Moreover, these rules are not intended to govern or affect judicial application of either the attorney-client or
      work product privilege.”) (emphasis added).
15    Majority Opinion at 704–05 & n. 7, 709–10 & n. 19.
16    See id. at 709.
17    642 S.W.2d at 769.
18    28 S.W.3d at 512 (citing TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.09(a)).
19    It could be argued, I suppose, that Turner's property interest works in tandem with McCann's “fiduciary duty,” Majority Opinion
      at 707–08 & n. 14, to place limits on the trial court's authority to order a relinquishment of Turner's property. But again, the fact
      that McCann has an ethical duty to his client does not necessarily imply that Judge Elliott has a clear legal duty to rule in favor of
      McCann. And I do not understand how the aggregation of one arguably authority-limiting consideration (property rights) with one
      arguably non-authority-limiting consideration (fiduciary duty) results in a decidedly authority-limiting consideration that is somehow
      greater than the sum of its parts.
20    See TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶ 2 (“As advocate, a lawyer zealously asserts the client's position
      under the rules of the adversary system.”).
21    See George E. Dix and John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 61:3,
      at 930 (3d ed.2011) (citing Dickens v. Court of Appeals for Second Supreme Judicial District of Texas, 727 S.W.2d 542, 549
      (Tex.Crim.App.1987) (“Mandamus is an extraordinary writ, and is not issued as a matter of right, but rests largely in the sound


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In re McCann, 422 S.W.3d 701 (2013)


      discretion of the Court.”) (citation omitted); Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Crim.App.1993)
      (“[M]andamus is a drastic remedy, to be invoked only in extraordinary situations.”) (alteration in original) (citation omitted)).
22    Id.
23    In re McCann, Nos. AP–76,998 & AP–76,999, 2013 WL 1149840, at *1 (Tex.Crim.App. Mar. 20, 2013) (per curiam) (not designated
      for publication).
24    George E. Dix and John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 61:3, at 930
      (3d ed.2011).
25    TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶¶ 1–3, 6, R. 1.01(b)(1) & cmt. 1, 6, R. 1.02(a)(1) & cmt. 1, R. 3.01
      cmt. 1, R. 3.03 cmt. 1 (emphases added and some ellipses omitted throughout).
26    GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 1.1(A), 11.1(B), 11.2(A), 11.2(B)(1), 12.2(B)(1)(b),
      12.2(B)(2)(c), 12.2(B)(3)(b), 12.2(B)(6)(a), 12.2(B)(7)(b) (State Bar of Tex.2006) (emphases added and some ellipses omitted
      throughout).
27    See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).
28    Id. at 813–14.
29    Id. at 814 n. 5 (citing George E. Dix and Robert O. Dawson, 41 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE
      § 24.94 (2d ed.1995)).
30    GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 12.2(B)(1)(b) (State Bar of Tex.2006).
31    Indeed, it is arguable that Rytting is ethically bound to at least investigate a claim of ineffective assistance even against his client's
      expressed wishes. Cf. Summerlin v. Schriro, 427 F.3d 623, 638–39 (9th Cir.2005) (“[A] lawyer's duty to investigate [mitigation
      issues] is virtually absolute, regardless of a client's expressed wishes ... [E]ven when faced with client directives limiting the scope of
      defense, an attorney must conduct a reasonable investigation enabling him to make informed decisions about how best to represent
      his client.”) (internal quotation marks omitted) (quoting Silva v. Woodford, 279 F.3d 825, 838–46 (9th Cir.2002)); Harries v. Bell,
      417 F.3d 631, 638 (6th Cir.2005) ( “[A] ‘defendant['s] resistance to disclosure of information does not excuse counsel's duty to
      independently investigate.’ ”) (quoting Coleman v. Mitchell, 268 F.3d 417, 449–50 (6th Cir.2001)); Thompson v. Wainwright, 787
      F.2d 1447, 1451 (11th Cir.1986) (“[A] lawyer[ ] may not ‘blindly follow’ [the client's] commands [because] although the decision
      whether to use [mitigation] evidence in court is for the client ... the lawyer first must evaluate potential avenues and advise the client
      of those offering possible merit.”) (quoting Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983)). In any event, this Court has
      yet to hold otherwise. And the ineffectiveness of trial counsel is, to say the least, an extremely important claim to make, as evidenced
      by the fact that it is one of the most often-litigated claims in a writ application. See Gary Udashen, Designating and Determining
      Issues on An Applications for Writ of Habeas Corpus, Texas Center for the Judiciary 2009 Writs Training Conference at 6 (2009).
32    For example, at the October 7, 2011 OCW–McCann hearing, the following exchange took place between Turner and counsel for
      McCann:
            [Counsel for McCann:] Do you think that Mr. McCann did a good job in your trial?
            [Mr. Turner:] (Shakes head negatively).
            [Counsel for McCann:] Is that a no?
            [Mr. Turner:] (No response).
            [Counsel for McCann:] You can say it. It's okay. You're not going to hurt anybody's feelings.
            [Mr. Turner:] No.
33    See, e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
34    See, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
35    See, e.g., Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996).
36    See Ex parte Medina, 361 S.W.3d 633, 638 n. 10 (Tex.Crim.App.2011).
37    Id. at 637–38 (where a habeas applicant makes conclusory allegations in his initial writ application, even remanding to the trial court
      for further factual development is inappropriate).
38    TEX.CODE CRIM. PROC. art. 11.071, § 2.
39    In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App.2013).


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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          15
