            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. AP-76,183



                       IN RE MORRIS WAYNE SIMON, Relator

                                              v.

               LENA LEVARIO, 204 TH JUDICIAL DISTRICT COURT
                      OF DALLAS COUNTY, Respondent



                 ON PETITION FOR A WRIT OF PROHIBITION
                 IN CAUSE NO. F-08-54622-Q FROM THE 204 TH
               JUDICIAL DISTRICT COURT OF DALLAS COUNTY

      P RICE, J., delivered the opinion of the Court in which M EYERS, W OMACK,
J OHNSON, K EASLER, H ERVEY, H OLCOMB and C OCHRAN, JJ., joined. K ELLER, P.J.,
concurred in the result.

                                       OPINION

       The relator was indicted in Dallas County for the offense of capital murder. The State

elected not to seek the death penalty. During pretrial proceedings, the relator “indicated that

[he] seeks to present the testimony of a mental health expert in regards to [his] mental state
                                                                                            Simon - 2

and the voluntariness of his confession.”1 In response, the State filed a motion seeking to

have the relator evaluated by its own psychiatric expert so that it could be prepared to rebut

any expert testimony the relator might offer in a pretrial suppression hearing or at trial. The

trial court granted the State’s motion, ordering the relator to submit to an examination by a

State-designated expert. The State’s expert was specifically ordered not to interrogate the

relator about the facts of the offense itself and not to reveal the results of his examination to

the prosecutors unless and until the relator’s expert should testify.

       The relator has now filed an application for writ of prohibition in this Court, seeking

relief from the trial court’s order subjecting him to examination by the State’s expert.2 The

relator argues that the trial court’s order impinges upon his Fifth and Fourteenth Amendment

right to be free from compelled self-incrimination. He argues that the authorities cited by the

State in support of the trial court’s order are factually distinguishable from his case, and that

none expressly permits the examination by a State’s expert under the circumstances presented

here. Because we find that the relator has failed to satisfy at least one of the criteria for

obtaining extraordinary relief, we deny his application.


       1

        Application for Writ of Prohibition, at 2.
       2

           The relief that the relator seeks is more in the nature of a writ of mandamus than a writ of
prohibition, since he would have us “undo” an “accomplished judicial act.” State ex rel. Wade v.
Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985). That being the case (and unlike the case with
respect to writs of prohibition), we could simply have dismissed the application for failure to present
it first to the appropriate court of appeals. Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim.
App. 2003). Regardless of whether we characterize it as a writ of prohibition or a writ of mandamus,
however, we will dispose of the relator’s application against him on another basis.
                                                                                           Simon - 3

                     STANDARD FOR EXTRAORDINARY RELIEF

       The traditional test for determining whether mandamus or prohibition relief is

appropriate requires the relator to establish two things.3 First, he must show that he has no

adequate remedy at law to redress the harm that he alleges will ensue if the act he wishes to

prohibit is carried out.4 Second, he must show that the act he seeks to compel or prohibit

does not involve a discretionary or judicial decision.5 If the relator fails to satisfy either

aspect of this two-part test, then relief should be denied. As to the latter requirement, we

have said that it is satisfied if the relator can show he has “a clear right to the relief

sought”–that is to say, “when the facts and circumstances dictate but one rational decision”

under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law

sources), and clearly controlling legal principles.6

       While a trial court has a ministerial duty to rule upon a motion that is properly and



       3

       The standards for mandamus and prohibition relief are essentially the same. State ex rel.
Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App. 1985).
       4

        Id. at 898-99; Ex parte Chi, 256 S.W.3d 702, 703 (Tex. Crim. App. 2008).
       5

        E.g., De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).
       6

        State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007); Buntion v. Harmon, 827 S.W.2d 945, 947, 948 n.2 (Tex. Crim. App. 1992).
Stated another way, an act may be regarded as “ministerial” when the facts are undisputed and, given
those undisputed facts, “the law clearly spells out the duty to be performed . . . with such certainty
that nothing is left to the exercise of discretion or judgment.” State ex rel. Healey v. McMeans, 884
S.W.2d 772, 774 (Tex. Crim. App. 1994) (quoting Texas Dept. of Corrections v. Dalehite, 623
S.W.2d 420, 424 (Tex. Crim. App. 1981)).
                                                                                         Simon - 4

timely presented to it for a ruling, in general it has no ministerial duty to “rule a certain way

on that motion.” 7 By this we mean that mandamus or prohibition will not lie to “compel the

trial court ‘to rule a certain way’ on an uncertain and unsettled issue the resolution of which

involved a fair amount of discretion.” 8 In short, it is improper to order a trial court to

exercise its judicial (as opposed to its ministerial) function in a particular way unless the

relator has a “clear right to the relief sought,” i.e., the law he invokes is definite,

unambiguous, and unquestionably applies to the indisputable facts of the case. Even when

the facts are undisputed, the extraordinary mechanism of a writ of prohibition or mandamus

will not lie to resolve “a hotly contested unsettled ‘question of law’[.]” 9

                           APPLICATION OF LAW TO FACT

       For the proposition that it should be allowed to have its expert examine the relator, the

State invoked our opinion in Lagrone v. State.10         The relator argues that Lagrone is

distinguishable because there, the defendant proposed to introduce expert testimony with

respect to the issue of future dangerousness in a capital case in which the State sought the

death penalty. The State responds that the particular factual context matters little—the



       7

        State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987).
       8

        State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 199 n.3 (Tex. Crim. App. 2003).
       9

        State ex rel. Wade, supra, at 898.
       10

        942 S.W.2d 602, 609-12 (Tex. Crim. App. 1997).
                                                                                    Simon - 5

principle is the same, namely, that once a criminal defendant constructively testifies by

submitting to an examination in support of his own testifying expert’s opinion, he has waived

his Fifth and Fourteenth Amendment privilege against self-incrimination, and so must choose

either to submit to an examination by the State’s expert as well or else have his own expert’s

testimony excluded from evidence.

       In support of its argument, the State cites this Court’s unpublished opinion in Ward

v. State.11 There we unanimously held, citing Lagrone and Chamberlain v. State,12 that the

operative principle was one of waiver of the Fifth and Fourteenth Amendment privilege, and

that it was not limited to the factual context of rebutting expert testimony from the defense

with respect to future dangerousness. We articulated the principle thus:

       [I]f a defendant breaks his silence to speak to his own psychiatric expert and
       introduces that testimony which is based on such interview, he has
       constructively taken the stand and waived his fifth amendment right to refuse
       to submit to the state’s psychiatric experts. The focus is on the defendant’s
       choice to break his silence. * * * The issue is whether the psychiatric
       testimony he intended to introduce was based on his own participation in the
       psychiatric testing and examination.13

Focusing on the waiver, we held that the holding of Lagrone applied equally to psychiatric

evidence in mitigation of the death penalty. “The nature of the psychiatric testimony to be


       11

        Ward v. State, 2007 WL 1492080 (Tex. Crim. App., No. AP-74,695, delivered May 23,
2007) (not designated for publication).
       12

       998 S.W.2d 230 (Tex. Crim. App. 1999).
       13

       Ward, supra (slip op. at 6).
                                                                                                Simon - 6

presented is immaterial—that it is being presented by the defendant is enough to trigger the

rule.” 14 We deemed this principle sufficiently unremarkable that we did not even see fit to

designate our opinion for publication.

        We do not now rely on our unpublished opinion in Ward for the proposition that the

trial court did not err to grant the State’s motion for its own psychiatric examination in the

factual context of this non-death capital prosecution. But we do regard it as ample evidence

that the issue is—at best—an “unsettled” legal question. If what we said in Lagrone is not

limited in principle to the type of psychiatric evidence presented at the punishment phase of

a death-penalty case, it may not be limited in principle to the punishment phase of a capital

murder death-penalty trial, or even to death-penalty cases at all. Accordingly, we cannot say

under the circumstances of this case—and particularly in view of the tight restrictions the

trial court imposed on the State in its order—that the relator has established a clear right to

be insulated from examination by a State’s psychiatric expert.15 In granting the State’s


        14

        Id. (slip op. at 7).
        15

         In his brief in support of his application for writ of prohibition, the relator argues that, in the
non-death-penalty context, we should not regard the State’s interest in rebutting defense psychiatric
testimony to be sufficiently compelling to outweigh the accused’s constitutional privilege against
self-incrimination. Brief in Support of Application for Writ of Prohibition, at 4-10. Even assuming
that such a balancing approach is consistent with the constructive waiver principle we have
articulated in our case law (a proposition that is at least debatable), and that we might tentatively
agree that the balance should tip in the relator’s favor, his contention amounts to no more than an
argument for why the unsettled question should ultimately be resolved in his favor. There is no
statute or court opinion that yet says so, as the relator’s counsel conceded (“I have not found any law
on it one way or the other”) at the hearing on the State’s motion. The relator’s argument falls far
short of establishing the necessary “clear right” to relief.
                                                                                            Simon - 7

motion in this case, the trial court exercised a manifestly judicial (and not a ministerial)

function.16 Such an “accomplished judicial act” is not subject to the extraordinary remedy

of prohibition.17

       For this reason, we deny the relief that the relator seeks.


Delivered:     November 18, 2009
Publish




       16

          The trial court had both subject matter jurisdiction and jurisdiction over the person, we
presume, by virtue of the indictment—at least the relator does not argue otherwise. Under some
circumstances, we have observed, even a trial court with general jurisdiction may lack authority to
take a certain action, and sometimes that lack of authority will render its purported action “void.”
State v. Moore, 225 S.W.3d 556, 568 n.47 (Tex. Crim. App. 2007), citing Davis v. State, 956 S.W.2d
555, 559 (Tex. Crim. App. 1997). We have occasionally granted extraordinary relief when a trial
court with general jurisdiction has nevertheless acted in the absence of authority. E.g., Stearnes v.
Clinton, 780 S.W.2d 216, 223 (Tex. Crim. App. 1989) (trial judge who presided over capital murder
trial lacked “the inherent power” to remove court-appointed counsel under the circumstances and
therefore acted “without authority”; therefore, his order removing counsel from the case was subject
to mandamus relief). A trial court has no discretion to act where it lacks authority. But that is not
the relator’s argument here. The relator argues that we should not regard the State’s interests in
rebuttal as weighty enough in the procedural posture of this case to trump his constitutional privilege
absent express legislation to implement an order such as the one at issue here, see note 15, ante, and
thus challenges the correctness of the trial court’s ruling. He never expressly argues, however, that,
in the absence of specific legislation, the trial court categorically lacked authority to rule on the
State’s motion. Indeed, his argument seems to concede that a trial court may grant such a motion
(as did the trial courts in Lagrone, Chamberlain, and Ward) so long as the balance between the
State’s interest and his constitutional privilege ultimately tips in the State’s favor.
       17

        State ex rel. Wade, supra, at 897 (emphasis added).
