         IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                                    NO. AP-77,055



                       RANDALL WAYNE MAYS, Appellant

                                           v.

                               THE STATE OF TEXAS

              ON APPEAL FROM THE DENIAL OF A MOTION
               TO DETERMINE EXECUTION COMPETENCY
           FROM CAUSE NO. B-15,717 THE 392ND DISTRICT COURT
                        HENDERSON COUNTY

       H ERVEY, J., delivered the opinion of the Court in which J OHNSON, K EASLER,
A LCALA, R ICHARDSON, Y EARY, and N EWELL, JJ., joined. K ELLER, P.J., filed a
dissenting opinion in which M EYERS, J., joined.

                                     OPINION

      Appellant was convicted of capital murder and sentenced to death. He

subsequently challenged his competency to be executed. The trial court denied

Appellant’s motion because he failed to make a substantial showing of execution

incompetence. Appellant now argues that the trial court erred. We agree. Because we hold

that Appellant did make a substantial showing that he is incompetent to be executed, we
                                                                                           Mays–2

set aside the order of the court denying relief and remand this cause to the trial court for

further competency proceedings, including the appointment of mental-health experts. The

current stay of execution shall remain in effect pending the outcome of the competency

proceedings in the trial court.

                                        I. B ACKGROUND

       In May 2008, Appellant was sentenced to be executed after he shot and killed a

sheriff’s deputy.1 This Court affirmed his conviction and sentence and later denied his

application for a writ of habeas corpus. Mays v. State, 318 S.W.3d 368, 397 (Tex. Crim.

App. 2010); Ex parte Mays, WR-75,105-01, 2011 WL 1196799 (Tex. Crim. App. Mar.

16, 2011) (per curiam) (not designated for publication). His execution was set for March

18, 2015.

       On February 10, 2015, less than a month before the date of execution, the Office

of Capital Writs (OCW) became aware of Appellant’s case and began investigating the

possibility of pursuing additional state litigation on his behalf.2 Three days after OCW

began its investigation, it filed a motion requesting that Appellant’s date of execution be

modified or stayed so that Appellant would have the opportunity to challenge his

competency. On February 19, the court held a hearing on Appellant’s motion to modify or



       1
         We have previously discussed the facts of this case in Appellant’s direct appeal. Mays v.
State, 318 S.W.3d 368, 372–75 (Tex. Crim. App. 2010).
       2
       OCW became aware of Appellant’s case after it received an email from one of
Appellant’s trial counsel, as well as “other people in the defense community . . . .”
                                                                                         Mays–3

stay and denied it. It was agreed, however, that OCW would file the competency motion

on February 24, and the court would hold a hearing on the competency motion three days

later. Due to the imposed time constraints, Appellant was able to rely only on affidavits to

meet his threshold burden of proof at that hearing.3 The court did, however, entertain

arguments from the parties. At the conclusion of the hearing, the court denied Appellant’s

motion, finding that Appellant had raised “some doubt,” but had not made a substantial

showing.

                       II. P RINCIPLES OF EXECUTION COMPETENCY

       “A person who is incompetent to be executed may not be executed.” T EX. C ODE

C RIM. P ROC. art. 46.05(a); Ford v. Wainwright, 477 U.S. 399, 409–10 (1986). A

defendant is incompetent to be executed if (1) he does not understand that he is to be

executed and that his execution is imminent, and (2) he does not understand the reason for


       3
        The record shows that counsel for Appellant sought to have his retained expert
personally visit with Appellant but was unable to do so,

       [O]ne of the reasons we’re asking for the stay, a short -- not a stay but a
       modification is, if this Court -- one, it would be -- it would be wonderful to have
       the expert go to Polunsky and interview [Appellant]. We’re not going to have time
       to do that if we have to file by next Wednesday [February 25, 2015]. And we have
       to file by next Wednesday for the Court of Criminal Appeals to have a chance to
       review this, if this Court denies the motion.
                So barring that, we’re going to have to just have our expert review files
       and letters, historical and some current, and opine to you that there has been a
       substantial showing of that, and then hopefully you’ll say the same thing.
                This all has to take place before March 18th[, 2015, Appellant’s scheduled
       execution date]. That’s a lot of moving pieces to be done by March 18th.
                                                                                          Mays–4

his execution.4 T EX. C ODE C RIM. P ROC. art. 46.05(h).

       Article 46.05 of the Texas Code of Criminal Procedure provides the procedure by

which a defendant can prove he is incompetent to be executed, and it can be broken into

two discrete stages. First, a defendant has a threshold burden to make a substantial

showing of execution incompetency. Once this threshold burden has been satisfied, a

defendant is entitled to further proceedings (the second stage) in accordance with Article

46.05 and the Due Process Clause of the Fourteenth Amendment.5 T EX. C ODE C RIM.

P ROC. art. 46.05(f) (requiring further proceedings after a defendant makes a substantial

showing of execution incompetency); Druery v. State, 412 S.W.3d 523, 533–34 (Tex.

Crim. App. 2013).

       “[A] ‘substantial showing’ requires more than ‘some evidence’ of incompetency,

but less than establishing incompetency by a preponderance of the evidence.” Druery, 412

S.W.3d at 537. Because this threshold stage is intended to determine only whether a



       4
        With respect to the second prong, a defendant does not understand the reason for his
execution unless he has a “rational understanding” of that reason. See Panetti v. Quaterman, 551
U.S. 930, 959 (2007).
       5
         In Ford, Justice Powell authored a concurring opinion (that was adopted by the Supreme
Court later in Panetti), in which he explained that he believed the Florida execution-competency
statute violated due process. Ford, 477 U.S. at 424 (Powell, J., concurring in part and concurring
in judgment). He also opined that, while he did not believe due process required a “full-scale
‘sanity trial’” at the time a defendant seeks a stay of execution, once a defendant made a
“substantial threshold showing of insanity,” due process requires that the defendant have an
adequate opportunity to be heard. Id. at 425; see id. at 424 (“As Justice O’Connor states, “[i]f
there is one ‘fundamental requisite’ of due process, it is that an individual is entitled to an
‘opportunity to be heard.’”); see Panetti, 551 U.S. at 949 (adopting Justice Powell’s concurring
opinion in Ford).
                                                                                           Mays–5

defendant is entitled to further proceedings6 —not to be adversarial—if the court must

resolve disputed material facts or weigh conflicting credible evidence, then the defendant

has met his substantial-showing burden. Id. at 540. In making its ruling, the court must

consider the defendant’s competency motion, attached documents, any responsive

pleadings, and whether there is a presumption of competency due to a previous filing

under Article 46.05.7 T EX. C ODE C RIM. P ROC. art. 46.05(d).

       The second stage is a final, adversarial hearing at which a defendant has to prove

by a preponderance of the evidence that he is incompetent to be executed.8 At this

hearing, and unlike at the threshold stage, the fact finder must consider competing


       6
        Once a defendant has made a substantial showing that he is incompetent to be executed,
he must be given a meaningful opportunity to be heard and an “‘adequate opportunity to submit
expert evidence in response.’” Green v. State, 374 S.W.3d 434, 440 (Tex. Crim. App. 2012)
(quoting Panetti, 551 U.S. at 949); see TEX . CODE CRIM . PROC. art. 46.05(f); see also supra, note
5.
       7
         Under the statute, a presumption of competency arises only if the defendant has
previously filed a motion under Article 46.05 and was determined to be competent. TEX . CODE
CRIM . PROC. art. 46.05(e). However, we note that, in a defendant’s Article 46.05 motion, he must
identify any previous proceeding challenging his competency, not just previous proceedings
dealing with execution competency, including sanity at the time of the offense, competency to
stand trial, and competency to be executed. Id. art. 46.05(c).
       8
        Article 46.05(k) governs the second (and final) stage of execution-incompetency
proceedings,

       The trial court shall determine whether, on the basis of reports provided under
       Subsection (i), the motion, any attached documents, any responsive pleadings, and
       any evidence introduced in the final competency hearing, the defendant has
       established by a preponderance of the evidence that the defendant is incompetent
       to be executed. If the court makes a finding that the defendant is not incompetent
       to be executed, the court may set an execution date as otherwise provided by law.

TEX . CODE CRIM . PROC. art. 46.05(k).
                                                                                      Mays–6

credible evidence of competency and resolve the ultimate issue of whether the defendant

is incompetent to be executed. T EX. C ODE C RIM. P ROC. art. 46.05(k) (requiring a court to

consider, among other things, the expert’s reports and “any evidence introduced at the

final competency hearing”); see also Green, 374 S.W.3d at 444 (evidence at final hearing

supported “a finding of competency or incompetency”).

          III. S UBSTANTIAL-SHOWING DETERMINATION STANDARD OF REVIEW

       Before we can determine whether Appellant made a substantial showing of

execution incompetence, we must decide the standard by which we will review a lower

court’s substantial-showing determination.

A. The arguments of the parties

       Appellant argues that whether he made a substantial showing of execution

incompetency is a mixed question of law and fact, but because the finding does not turn

on evaluations of credibility and demeanor, it should be reviewed de novo, not for an

abuse of discretion. The State responds that a determination of execution competency is a

factual question that turns on credibility and demeanor; therefore, the court’s decision of

whether a defendant met that threshold burden should be reviewed for an abuse of

discretion. Alternatively, the State argues that, even if the question of substantial showing

is not a question of fact, the highly deferential abuse-of-discretion standard nonetheless

applies because the determination is a mixed question of law and fact that requires

credibility and demeanor determinations.
                                                                                      Mays–7

B. General principles of appellate standards of review

       The appropriate standard of review to apply on appeal depends on the type of

question to be examined, and we have discussed four different kinds of questions: (1)

questions of fact, (2) questions of law, (2) application-of-law-to-fact questions

(sometimes called mixed questions) that turn on credibility and demeanor, and (4)

application-of-law-to-fact questions not turning on credibility and demeanor. See Absalon

v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015).

       When dealing with issues of historical fact, reviewing courts must determine

whether the evidence, when viewed in the light most favorable to the court’s ruling,

supports the finding of fact (or implied finding of fact). Abney v. State, 394 S.W.3d 542,

548 (Tex. Crim. App. 2013). “The reason that reviewing courts defer to the trial court’s

factual determinations is precisely because the judge is ‘Johnny-on-the-spot,’ personally

able to see and hear the witnesses testify.” Manzi v. State, 88 S.W.3d 240, 254 (Tex.

Crim. App. 2002) (Cochran, J., concurring). And, although mixed questions contain

elements of fact and law, we have said that when a mixed question turns on credibility

and demeanor, a deferential standard still applies because “the issue involves the

credibility of a witness, thereby making the evaluation of that witness’ demeanor

important . . . .” Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (citing

Miller v. Fenton, 474 U.S. 104 (1985)).

       On the other hand, the resolution of legal questions depends on this Court’s
                                                                                      Mays–8

interpretation of the applicable law. See Krause v. State, 405 S.W.3d 82, 85 (Tex. Crim.

App. 2013). As such, we do not defer to a lower court’s resolution of legal questions.

Similarly, when the mixed question does not turn on credibility and demeanor, appellate

courts may exercise their discretion to review such questions de novo. Guzman, 955

S.W.2d at 87. We have said that “a question ‘turns’ on an evaluation of credibility and

demeanor ‘when the testimony of one or more witnesses, if believed, is always enough to

add up to what is needed to decide the substantive issue.’” Abney, 394 S.W.3d at 547

(emphasis in original) (quoting Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App.

1998)).

C. A trial court’s substantial-showing determination is reviewed de novo.

       In Druery, 412 S.W.3d at 526, the appellant argued that he was incompetent to be

executed, but the court denied his motion because it found that he had not made a

substantial showing of incompetency. He appealed that ruling to this Court. In resolving

his appeal, we first had to construe the statutory phrase “substantial showing.” Id. at

536–41 (citing Krause, 405 S.W.3d at 85) (statutory construction is a question of law that

is reviewed de novo). After an exhaustive analysis, we concluded that a substantial

showing requires more than some evidence of execution incompetency but less than a

preponderance. Id. at 536–41 (relying on federal constitutional considerations, analogous

threshold determinations, the language and structure of Article 46.05, and decisions from

other jurisdictions when construing the phrase “substantial showing” as a matter of first
                                                                                    Mays–9

impression).

       We then discussed the standard of review applicable to the appellant’s claim. Id. at

536 (determining the “[s]tandard of review applicable to a determination that Appellant

failed to make a “substantial showing . . .”). Relying on the Fifth Circuit and the Western

District of Texas, we said that we review a court’s substantial-showing determination de

novo when deciding whether the lower court applied the correct execution-competency

standard, when the trial court did not comply with Article 46.05, or when due process was

otherwise violated. See id. at 536–37 (citing Panetti v. Stephens, 727 F.3d 398, 409–10

(5th Cir. 2013); Panetti v. Dretke, 401 F. Supp. 2d 702, 705–06 (W.D. Tex. 2004)).

Unlike this case, however, in Druery we reviewed the court’s substantial-showing

determination de novo because it did not comply with Article 46.05 and the prohibition

against weighing credible evidence of incompetency and competency at the threshold

stage of the proceedings. Druery, 412 S.W.3d at 542.

       This case presents a question that we did not address in Druery, namely: What

appellate standard of review applies to a trial court’s substantial-showing determination

when the court applied the correct competency standard, the proceedings complied with

Article 46.05, and they did not violate due process? We hold that, in such a case, the

lower court’s substantial-showing determination is reviewed de novo because, at this

stage of the proceedings, the court is not permitted to weigh competing credible evidence
                                                                                         Mays–10

of competency. Rather, it may consider only evidence of incompetency.9 Compare Green,

374 S.W.3d at 444 (affirming ruling of trial court that the appellant was competent after

weighing competing credible evidence at final execution-competency hearing, although

the evidence supported a finding of both competence and incompetence), with Druery,

412 S.W.3d at 541 (explaining that, although the evidence at the threshold stage

supported a finding of competency or incompetency, because evidence of only

incompetency could be considered, weighing competing credible evidence was error).

      IV. W HAT IS THE MEANING OF “ RESPONSIVE PLEADINGS” IN A RTICLE 46.05?

       The State argues that the statutory phrase “responsive pleadings” should be

interpreted such that the State “can, without offering ‘additional’ evidence, attack the

credibility, reliability and relevance of the evidence in the defendant’s pleadings,

challenge jurisdiction, procedural errors or bars, and point out previously adjudicated

facts and legal conclusions relevant to the defendant’s competency.” State’s Brief at 10. It

also asserts that, “[b]y requiring the trial court to consider the State’s responsive

pleadings in plain and unambiguous text, the statute must contemplate that the State

would ‘respond’ (as an adversary) to the motion, documents and any affidavits contained

in the defendant’s motion.” Id. at 10–11.

       When interpreting the meaning of a statute, we aim to effectuate the collective


       9
        Although a court may consider evidence of only incompetency at this point in the
proceedings, it does not follow that the defendant’s evidence will always be sufficient to make a
substantial showing. For example, when the only evidence of incompetency is the opinion of an
astronomy expert.
                                                                                      Mays–11

intent of the legislators who enacted the statute. See Krause, 405 S.W.3d at 85. We begin

our analysis with the language of the provision, and if that language is plain, we will

honor it, unless doing so would lead to absurd consequences that the Legislature could

not have intended. Id.

       Here, the statute does not address who may file responsive pleadings under Article

46.05, nor does it indicate whether such pleadings must be adversarial. Rather, the only

requirement is that the trial court make its substantial-showing determination on the basis

of those pleadings (among other considerations). T EX. C ODE C RIM. P ROC. art. 46.05(d).

Thus, while the State may file a responsive pleading under Article 46.05, others may do

so as well. In addition, the State’s responsive pleadings need not be adversarial. For

example, the State may agree that the defendant is incompetent to be executed or that

experts should be appointed to assess the defendant’s competency. See, e.g., Caldwell, 58

S.W.3d at 128 (the State challenged the applicant’s competency to be executed and

sought the appointment of experts to evaluate him, although it believed that he was

competent to be executed).

           V. W HETHER A PPELLANT ESTABLISHED A SUBSTANTIAL SHOWING

       To support his request for the appointment of experts, Appellant introduced

medical records dating back to 1985, the trial testimony of three expert witnesses,

affidavits from other competency experts, and letters written by Appellant while

incarcerated.
                                                                                     Mays–12

       In July 1983, Appellant was involuntarily committed to the Terrell State Hospital,

a state-supported psychiatric inpatient unit. He presented as delusional, hallucinating, and

combative, and he was described as “actively psychotic.” In June 1985, Appellant was

returned to the Terrell State Hospital by law-enforcement officers who found him “spaced

out on crystal [meth]” and experiencing auditory hallucinations.

       Following his May 2007 arrest on the instant offense, he was admitted to the East

Texas Medical Center for the treatment of a gunshot wound. During his eight-day

hospitalization, the nurses at times noted that he exhibited non-compliant and

inappropriate behavior. At one point, he was lying in bed screaming for help and stating

that he thought people were trying to kill him and that he thought they had killed his wife.

He was also observed talking to someone who was not there and would urinate on

himself. Ultimately, Appellant was discharged to the Smith County Jail, and when he was

booked in, officials noted that he suffered from mental illness. He was later diagnosed

with Organic Brain Syndrome, which psychologist James Underhill explained was a

predecessor term for dementia. In October 2007, while still in the Smith County Jail,

officials noted that Appellant continued to suffer from paranoia and odd affect, so he was

prescribed a powerful anti-psychotic. A month later, he was again described as paranoid

and guarded.

       During his 2008 trial, numerous lay and expert witnesses described Appellant as

mentally ill and exhibiting a pattern of irrational behaviors. Psychiatrist Theresa Vail,
                                                                                           Mays–13

who was under contract with the Smith County Jail, diagnosed Appellant with depression

and a psychotic disorder not otherwise specified.10 She noted that he suffered from

delusions and hallucinations and that he was afraid that he was being poisoned and

plotted against. She categorized his mental illness as severe and likely permanent because

his drug abuse would have damaged his brain. Psychologist Dr. Gilda Kessner diagnosed

Appellant with paranoid personality disorder and psychosis not otherwise specified.11

Also at trial, psychiatrist Dr. David Self testified that Appellant suffered from delusions

and paranoia.

       In 2009, state habeas counsel retained Dr. Joan Mayfield to conduct a

neuropsychological evaluation of Appellant. Dr. Mayfield found that Appellant suffered

from impaired memory and dementia, among other deficits. In prison, he complained to

medical staff on several occasions that he was having trouble breathing because he was

allergic to ozone and needed antibiotics. However, medical personnel found no signs of



       10
          Dr. Gilda Kessner testified that a psychosis not otherwise specified is a diagnosis given
when a patient presents with psychotic disorder, but the clinician cannot determine whether the
disorder is primary, due to a general medical condition, or substance-induced. She further stated
that psychosis not otherwise specified “includes psychotic symptomatology, such as delusions,
hallucinations, disorganized speech, grossly disorganized or catatonic behavior about which there
is inadequate information to make a specific diagnosis or about which there is contradictory
information or disorders with psychotic symptoms that do not meet the criteria for [sic] nor any
specific . . . psychotic disorder.”
       11
          Currently retained expert Dr. James Underhill explained that “[p]sychoses are
disturbances in one’s ability to understand what is real and what is not real as well as disordered
logic leading one to make at times quite bizarre and incorrect interpretations of actions and
objects in the real world, frequently reflecting unique and substantial misinterpretations of events
in the real world.”
                                                                                     Mays–14

troubled breathing. In July 2013, Appellant requested a sick call after he had eaten some

bread, stating that he felt sick and thought he had purposefully been given contaminated

food. He also accused guards and other prisoners of trying to harm him and suggested

that, maybe they singled him out because he would not “participate in their games.”

Almost a year later, medical personnel wrote that Appellant should be scheduled for a

mental-health evaluation after he continued to complain about gases in the air affecting

his breathing.12 In letters Appellant wrote to his family while in prison, he talked about

wanting to start a business, asked his sister if she wanted to invest in a renewable energy

program for his trailer home, and offered to help his sister build, or have built, a windmill

tower for her electrical services.

       Attorney Katherine Black met with Appellant in February 2015 and noted that he

exhibited various odd behaviors and appeared delusional during their visit. Appellant told

her that he heard voices that he connected to “evil spirits.” He also complained to her

about the ozone in the air filling his cell and causing him pain. He said it was worse on

holidays when the cars on the road would fill his cell with carbon monoxide. When she

asked him why he was in prison, he did not give her a clear answer and seemed somewhat

confused by the question. Furthermore, when she asked questions about dates and times,

he gave vague and muddled answers and conflated individuals and periods in his life. She

noted that she had substantial doubts regarding whether Appellant was competent to be


       12
          Although medical personnel recommended that Appellant’s mental health be evaluated,
there is no evidence that such an evaluation took place.
                                                                                   Mays–15

executed.

       Finally, Appellant retained two new experts to review the historic and current

information about Appellant to give their opinions regarding his execution competency.

Appellant noted that, given the short time frame, the experts did not have time to evaluate

him directly, but based upon everything they reviewed, both experts expressed substantial

doubts about Appellant’s competency to be executed. They also believe that Appellant

should be evaluated by qualified court-appointed mental-health experts.

       After reviewing the record de novo for only evidence of Appellant’s

incompetence, we hold that he made a “substantial showing” that he is currently

incompetent to be executed. Therefore, he is entitled to further proceedings in accordance

with Article 46.05, including the appointment of “at least two mental health experts” and

a determination on the merits of his competency to be executed. The current stay of

execution shall remain in effect pending the outcome of the competency proceedings in

the trial court.

                                                 Hervey, J.

Delivered: December 16, 2015

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