                                                                      WR-83,141-01
                                                         COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                      Transmitted 4/16/2015 11:10:22 AM
                                                        Accepted 4/16/2015 11:25:44 AM
                                                                           ABEL ACOSTA
                       No. ____________                                            CLERK

                             In The                         RECEIVED
                                                     COURT OF CRIMINAL APPEALS
                                                            4/16/2015
               Court of Criminal Appeals               ABEL ACOSTA, CLERK


                         Austin, Texas


                              In re
                         Justin Chisum

                            Relator


             On Appeal from Cause No. 2015-820,779
  In the 134th Judicial District Court of Lubbock County, Texas
         The Honorable William R. Eichman, II, Presiding



EMERGENCY PETITION FOR WRIT OF MANDAMUS



                                      Allison Clayton
                                      State Bar No. 24059587
                                      The Law Office of Allison Clayton
                                      P.O. Box 64752
                                      Lubbock, Texas 79464
                                      (806) 773 – 6889
                                      Fax (888) 688 – 4515
                                      Allison@AllisonClaytonLaw.com

                                      Attorney for Appellant

                 ORAL ARGUMENT REQUESTED
                       IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 38.1(a), the following is a complete list of the

names of the parties and their counsel.


                PARTIES                                      COUNSEL

                                                    Trial and Appellate Counsel
                                                      Nicky Boatwright, P.C.
                                                           1005 Broadway
                                                       Lubbock, Texas 79401
           Justin Chisum
          Defendant / Relator                             Ted Hogan
                                                The Law Office of Ted Hogan, P.C.
                                                      1112 Texas Avenue
                                                     Lubbock, Texas 79401

                                                         Allison Clayton
                                                The Law Office of B. Allison Clayton
                                                         P.O. Box 64752
                                                    Lubbock, Texas 79464-4752

                                                           Trial Counsel
                                                          Sushine Stanek
                                                    Assistant District Attorneys
          The State of Texas                              P.O. Box 10536
                                                    Lubbock, Texas 79408-3536
The Honorable William Eichman, II
          Respondent                                    Appellate Counsel
                                                           Jeffrey S. Ford
                                                     Assistant District Attorney
                                                          P.O. Box 10536
                                                    Lubbock, Texas 79408-3536




                                          -i-
                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................. i

TABLE OF CONTENTS .............................................................................................ii

INDEX OF AUTHORITIES........................................................................................iii

STATEMENT OF THE CASE ....................................................................................v

STATEMENT OF JURISDICTION............................................................................vi

ISSUE PRESENTED ...................................................................................................vi

STATEMENT OF FACTS ..........................................................................................2

SUMMARY OF THE ARGUMENT .......................................................................... 3

ARGUMENT ...............................................................................................................4
  I. THE TRIAL COURT FAILED TO PERFORM A MINISTERIAL ACT
  BY DENYING MR. CHISUM’S MOTION TO STAY .................................................. 4

         A.      No Adequate Remedy Exists to Redress Mr. Chisum’s Harm .......... 4

         B.      The Trial Court had a Ministerial Duty to Stay the Proceedings...... 5
                 1. The Texas Legislature Steadfastly Protects Potentially
                    Incompetent Defendant’s ................................................................... 6

                 2. The Plain Language of Article 46B.004(d)
                    Includes Grand Jury Proceedings ....................................................... 8

                 3. The Trial Court Failed to Follow Statutory Dictate ........................... 14

     II. A STAY IS REQUIRED TO PROTECT MR. CHISUM’S
     CONSTITUTIONAL RIGHTS ....................................................................................15

PRAYER ......................................................................................................................17
CERTIFICATES ..........................................................................................................18
APPENDICES



                                                          - ii -
                                      INDEX OF AUTHORITIES

                                            Federal Cases

Bishop v. United States,
  350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956) ..........................................6, 10

Drope v. Missouri,
 420 U.S. 162, 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975) .................................. 6, 7, 16

Johnson v. Southern Pac. Co.,
  196 U.S. 1, 25 S.Ct. 158 , 49 L.Ed. 363 (1904) .....................................................9

Medina v. California,
 505 U.S. 437, 112 S.Ct. 2572 , 120 L.Ed.2d 353 (1992) .......................................6

Pate v. Robinson,
 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ................................... 6, 7, 13

Riggins v. Nevada,
  504 U.S. 127, 139, 112 S.Ct. 1810, 1817, 118 L.Ed.2d 479 (1992) ....................15

Rothgery v. Gillespie County, Texas,
 554 U.S. 191, 128 S.Ct. 2578 , 171 L.Ed.2d 366 (2008) ........................ 13, 15, 17

United States v. Cook,
 384 U.S. 257, 86 S.Ct. 1412 , 16 L.Ed.2d 516 (1966) .........................................10

United States v. Lacher,
 134 U.S. 624, 10 S.Ct. 625 , 33 L.Ed. 1080 (1890) ...............................................9

United States v. Winn,
 3 Sumn. 209, Fed. Cas No. 16,740 .........................................................................9

                                              State Cases

Alcott v. State,
  51 S.W.3d 596 (Tex. Crim. App. 2001) .................................................................7

Carlile v. State, 451 S.W.2d 511, 512 (Tex. Crim. App. 1970) ..............................15


                                                   - iii -
Easley v. State, 424 S.W.3d 535, 537 (Tex. Crim. App. 2014) ...............................15
Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
  996 S.W.2d 864 (Tex. 1999) ..................................................................................9

Greenwell v. Court of Appeals for the Thirteenth Judicial Dist.,
  159 S.W.3d 645 (Tex. Crim. App. 2005) ...............................................................4
In re McCann,
  422 S.W.3d 701 (Tex. Crim. App. 2013) ...............................................................4

In re Reed,
  227 S.W.3d 273 (Tex. App.—San Antonio 2007, no pet.) ..................................12

Montoya v. State,
 291 S.W.3d 420 (Tex. Crim. App. 2009) ...............................................................8

State ex rel. Curry v. Gray,
  726 S.W.2d 125 (Tex. Crim. App. 1987) ...............................................................4

State ex rel. Rosenthal v. Poe,
  98 S.W.3d 194 (Tex. Crim. App. 2003) .............................................. 4, 14, 15, 16

State ex rel. Wade v. Mays,
  689 S.W.2d 893 (Tex. Crim. App. 1985) ...............................................................4

Turner v. State,
  422 S.W.3d 676 (Tex. Crim. App. 2013) ...............................................................6

                                         Statutes
U.S. Const. amend. V, XIV .......................................................................................5
TEX. CONST. art. I, §§ 10, 19..................................................................................5, 6

TEX. CRIM. PROC. CODE ANN. art. 3.01 ....................................................................10

TEX. CRIM. PROC. CODE ANN. art. 20.02(a) ...................................................... 11, 12

TEX. CRIM. PROC. CODE ANN. art. 20.17........................................................... 16, 17

TEX. CRIM. PROC. CODE ANN. art. 24.4(c) ............................................................... vi

TEX. CRIM. PROC. CODE ANN. art. 46B.004 ..................................................... passim


                                                      - iv -
                          STATEMENT OF THE CASE

Nature of the Case This is a petition for a writ of mandamus. Relator has been

                    arraigned for capital murder. He seeks a stay of all non-

                    competency-related proceedings against him, including a

                    stay of grand jury proceedings, based on incompetency.

Trial Court/        The Honorable William Eichman, presiding judge of the
Respondent
                    364th Judicial District Court of Lubbock County, Texas.

Course of the       On April 13, 2015, Mr. Chisum filed a Motion to Stay Grand
Proceedings
                    Jury Proceedings along with a supporting brief. On April 15,

                    2015, the court held a hearing on the motion. The court

                    denied the motion from the bench at the conclusion of the

                    hearing. Mr. Chisum then filed an emergency petition for a

                    writ of mandamus and an emergency motion to stay the

                    proceedings with the Court of Appeals for the Seventh

                    District of Texas. That court has not yet ruled on the petition

                    for a writ of mandamus, although it has notified counsel via

                    phone that the motion to stay is denied.         The District

                    Attorney for Lubbock County will present the case to the

                    grand jury the morning of April 16, 2015.




                                      -v-
                           STATEMENT OF JURISDICTION

      This Court has jurisdiction pursuant to Article V, § 5(c) of the Texas

Constitution, Article 4.04 of the Texas Code of Criminal Procedure, and Rules 52

and 72.1 of the Texas Rules of Appellate Procedure.

      The Court of Criminal Appeals has concurrent, original jurisdiction with a

court of appeals over a petition for a writ of mandamus against the judge of a

district or county court. TEX. CONST. art. V, §§ 5, 6; Padilla v. McDaniel, 122

S.W.3d 805, 806 (Tex. Crim. App. 2003). Traditional practice, however, instructs

a petition for a writ of mandamus should be presented first to the court of appeals.

Padilla, 122 S.W.3d at 803. In this case, Relator has presented the petition for writ

of mandamus and the motion to stay to the court of appeals. That court has

indicated to counsel it has denied the motion to stay, although it has not yet

reduced its order to writing.     It has not ruled on the petition for a writ of

mandamus.

                                 ISSUE PRESENTED

Did the trial court fail to perform a ministerial duty and abuse its discretion when it

             failed to stay all proceedings, including grand jury proceedings,

                               in Mr. Chisum’s case?




                                         - vi -
                                 No. ____________

                                        In The

                         Court of Criminal Appeals
                                    Austin, Texas


                                         In re
                                    Justin Chisum

                                        Relator


                      On Appeal from Cause No. 2015-820,779
           In the 364th Judicial District Court of Lubbock County, Texas
                  The Honorable William R. Eichman, II, Presiding



           EMERGENCY PETITION FOR WRIT OF MANDAMUS



TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      JUSTIN CHISUM, Appellant in docket number _______, submits this

Emergency Petition for Writ of Mandamus in support of his request for the Court

to enter an order directing the trial to stay grand jury proceedings in this case.




                                          -1-
                              STATEMENT OF FACTS

      On February 2, 2015, Relator Justin Chisum was arraigned for the murder of

his four-year-old daughter. On March 11, 2015, his appointed attorneys filed a

Suggestion of Incompetency.      (Appendix A).     That same day, the trial court

entered an Order for Examination Regarding Incompetency. (Appendix B).

      On March 23, 2015, the court-appointed psychologist examined Mr.

Chisum. (Appendix C). He swore by affidavit dated April 8, 2015,

      Mr. Chisum is no currently competent to proceed in the defense of his
      case. I do not believe that heh has the sufficient present ability to
      consult with his attorneys with a reasonable degree of rational
      understanding, or a rational as well as factual understanding of the
      proceedings.

      On April 13, 2015, Mr. Chisum filed a Motion to Stay Grand Jury

Proceedings. (Appendix D). The trial court held a hearing on the motion on April

15, 2015. It denied the motion from the bench. After the trial court denied the

motion, Mr. Chisum filed with the Court of Appeals for the Seventh District of

Texas an Emergency Petition for Writ of Mandamus along with an Emergency

Motion for a Stay of Proceedings. On the morning of April 16, 2015, counsel for

Mr. Chisum was notified the appellate court had denied the motion to stay. That

court has not yet passed on the petition for a writ of mandamus.

      The Assistant District Attorney is presenting Mr. Chisum’s case to the grand

jury on the morning of April 16, 2015.



                                         -2-
                          SUMMARY OF THE ARGUMENT

      The trial court had a ministerial duty under the dictates of article 46B.004(d)

of the Texas Code of Criminal Procedure to stay the grand jury proceedings.

Because there is nothing to stop the District Attorney from now presenting the case

to the grand jury, despite Mr. Chisum’s incompetence, Mr. Chisum has no

adequate remedy other than to obtain a writ of mandamus from this Court.

      Article 46B.004(d) is an “if-then” statute, i.e. if certain evidentiary findings

are made, then the trial court “shall” stay all non-competency proceedings in the

case. The statute does not allow for the trial court to exercise any discretion. The

trial court entered the requisite evidentiary finding. Accordingly, the trial court

was then compelled by statute to stay all non-competency-related proceedings,

which includes grand jury proceedings.         The trial court’s failure to enter the

statutorily mandated stay was a violation of a ministerial duty.

      Moreover, the constitutions of both the United States and Texas guarantee a

defendant the right to the assistance of an attorney and to defend himself. It is

impossible for an incompetent person to defend himself and to effectively

communicate with his attorney. These constitutional imperatives line up with the

legislative mandate to stay proceedings. Respondent abused its discretion when it

failed to stay proceedings in light of evidence of serious mental incompetency. For

these reasons, a writ of mandamus is warranted.



                                         -3-
                                     ARGUMENT

        I. THE TRIAL COURT FAILED TO PERFORM A MINISTERIAL ACT
                BY DENYING MR. CHISUM’S MOTION TO STAY

      Mandamus relief is available only if the relator can demonstrate: (i) he has

no other adequate remedy at law; and (ii) under the relevant law and facts, the

respondent “clearly abused” his discretion or the act sought to be compelled is

“purely ministerial.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 215 (Tex.

Crim. App. 2003). The relief sought under either the abuse of discretion or the

ministrerial act provision must be “clear and indisputable” such that its merits are

“beyond dispute.” Id. (quoting State ex rel. Wade v. Mays, 689 S.W.2d 893, 897

(Tex. Crim. App. 1985)).

      a “ministerial” act is one which is accomplished without the exercise
      of discretion or judgment. If there is any discretion or judicial
      determination attendant to the act, it is not ministerial in nature. Nor is
      a ministerial act implicated if the trial court must weigh conflicting
      claims or collateral matters which require legal resolution.

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

       A. No Adequate Remedy Exists to Redress Mr. Chisum’s Harm

      The relator in a petition for a writ of mandamus “can show that no adequate

legal remedy exists at law if the remedy is ‘so uncertain, tedious, burdensome,

slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.’” In

re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (quoting Greenwell v.




                                         -4-
Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648-49 (Tex.

Crim. App. 2005)).

      As discussed in greater detail below, the trial court was compelled by statute

to stay the grand jury proceedings in this case. The court failed to comply with

statute, and the District Attorney intends to proceed with presentment of the case to

the grand jury. The only way for Mr. Chisum to have his statutory rights protected

is for this Court to now stay the proceedings in his case.

      B. The Trial Court had a Ministerial Duty to Stay the Proceedings

      It is axiomatic that the government should not prosecute an incompetent

person.   This principle, well-accepted centuries before America’s creation, is

acknowledged in the Due Process Clauses of both the United States and Texas

Constitutions. See U.S. CONST.     AMEND.   V, XIV; TEX. CONST. art. I, §§ 10, 19.

These Clauses establish the minimum protections afforded to defendants.

      The Texas Legislature has gone beyond the bare requirements of the Due

Process Clause in protecting the potentially and actually incompetent accused.

TEX. CRIM. PROC. CODE ANN. cpt. 46B. One of the ways the Legislature did this is

found in Article 46B.004(b), which mandates: “If the court determines there is

evidence to support a finding of incompetency, the court . . . shall stay all other

proceedings in the case.” TEX. CRIM. PROC. CODE ANN. art. 46B.004(d) (emphasis

added).   As detailed below, this statute requires once a court makes certain



                                         -5-
requisite evidentiary findings it must stop the case from proceeding until the issue

of the accused’s competence is resolved. Because the trial court, in this case, made

the requisite evidentiary findings, the statute directs it to stop all actions not related

to Mr. Chisum’s competency. This includes any grand jury review of the case.

    1. The Texas Legislature Steadfastly Protects Potentially Incompetent
                                Defendants

      Forcing an incompetent person to stand trial violates due process. This

ancient principle is an unquestioned pillar in American’s common law heritage.

As Blackstone explained, an incompetent person must not face trial, “for how can

he make his defence?” WILLIAM BLACKSTONE, 4 COMMENTARIES ON THE LAWS OF

ENGLAND 24-25 (19th ed. 1836). In America, this long-accepted principle became

rooted in the Due Process Clauses of the Fifth and Fourteenth Amendments of the

United States Constitution and in Article 1, sections 10 and 19 of the Texas

Constitution. Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 2574, 120

L.Ed.2d 353 (1992) (citing the Fourteenth Amendment as protecting against trying

an incompetent person); Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903,

43 L.Ed.2d 103 (1975) (citing the Fifth Amendment as protecting against trying an

incompetent person); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15

L.Ed.2d 815 (1966) (citing Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440,

100 L.Ed. 835 (1956)); Turner v. State, 422 S.W.3d 676, 688-89 (Tex. Crim. App.

2013). “It has long been accepted that a person whose mental condition is such

                                           -6-
that he lacks the capacity to understand the nature and object of the proceedings

against him, to consult with counsel, and to assist in preparing his defense may not

be subjected to a trial.” Drope, 420 U.S. at 171, 195 S.Ct. at 903. “[T]he failure to

observe procedures adequate to protect a defendant’s right not to be tried or

convicted while incompetent to stand trial deprives him of his due process right to

a fair trial.” Id. at 172, 95 S.Ct. at 904 (citing Robinson, 383 U.S. at 385, 86 S.Ct.

at 842).

      Review of Chapter 46B of the Code of Criminal Procedure reveals the Texas

Legislature is especially vigilant when it comes to protecting a potentially

incompetent person. For example, article 46B.004(c-1) deals with the triggering

mechanism for when a court should order a competency evaluation. In Pate, the

Supreme Court favorably cited an Illinois statute that “jealously guard[ed]” the due

process right to a fair trial in cases with potentially incompetent defendants. 383

U.S. at 395, 86 S.Ct. at 842. The statute required the court to order a competency

evaluation where the evidence raised a “bona fide doubt” about the defendant’s

competency. Id., 86 S.Ct. at 842.

      Following Pate, the Texas Legislature and the Court of Criminal Appeals

adopted the “bona fide doubt” standard. Alcott v. State, 51 S.W.3d 596, 599 (Tex.

Crim. App. 2001). In 2003, in an apparent attempt to abrogate the bona fide doubt

standard and impose an even lower requirement for triggering competency review,



                                         -7-
the Legislature created the unique “suggestion” of incompetency. The Court of

Criminal Appeals interpreted the suggestion of incompetency as simply an

iteration of the bona fide doubt standard. Montoya v. State, 291 S.W.3d 420, 425

(Tex. Crim. App. 2009). The next legislative session, the Legislature soundly

abrogated the bona fide doubt standard by passing article 46B.004(c-1), which

states “the court is not required to have a bona fide doubt about the competency of

the defendant.” To the extent the Supreme Court and the Court of Criminal

Appeals have held or intimated due process requires the presence of a bona fide

doubt before a court can inquire into a defendant’s competency, the Texas

Legislature has clearly written the statute to impose a much lower triggering

mechanism. It has gone beyond the bare protections of due process to protect an

incompetent person accused of committing a crime.

             2. The Plain Language of Article 46B.004(d) Includes
                           Grand Jury Proceedings

      The Legislature continued in this direction with the very next section,

wherein it has mandated “[i]f the court determines there is evidence to support a

finding of incompetency, the court . . . shall stay all other proceedings in the case.”

TEX. CRIM. PROC. CODE ANN. art. 46B.004(d) (emphasis added).                The plain

language of this statute mandates the trial court stay all non-competency-related

proceedings, which includes grand jury proceedings.




                                         -8-
      The purpose of analyzing a statute is to determine and give effect to the

Legislature’s intent. When determining this intent, a reviewing court must first

look to the plain meaning of the statue, for “it is a fair assumption that the

Legislature tries to say what it means, and therefore the words it chooses should be

the surest guide to legislative intent.” Fitzgerald v. Advanced Spine Fixation Sys.,

Inc., 996 S.W.2d 864, 866 (Tex. 1999). “[P]enal laws are to be construed strictly,

yet the intention of the legislature must govern in the construction of penal as well

as other statutes; and they are not to be construed so strictly as to defeat the

obvious intention of the legislature.” United States v. Lacher, 134 U.S. 624, 627,

10 S.Ct. 625, 628, 33 L.Ed. 1080 (1890). As Justice Story said,

             I agree to that rule in its true and sober sense; and that is, that
      penal statutes are not to be enlarged by implication, or extended to
      cases not obviously within their words and purport. But where the
      words are general, and include various classes of persons, I know of
      no authority which would justify the court in restricting them to one
      class, or in giving them the narrowest interpretation, where the
      mischief to be redressed by the statute is equally applicable to all of
      them. . . In short, it appears to me that the proper course in all these
      cases is to search out and follow the true intent of the legislature, and
      to adopt that sense of the words which harmonizes best with the
      context, and promotes in the fullest manner the apparent policy and
      objects of the legislature.

Johnson v. Southern Pac. Co., 196 U.S. 1, 18, 25 S.Ct. 158, 162, 49 L.Ed. 363

(1904) (quoting United States v. Winn, 3 Sumn. 209, Fed. Cas No. 16,740). This

principle has endured for generations. When interpreting a statute, the aim of the



                                         -9-
court must always be to give the statute’s words their fair meaning in accord with

the evidence intent of the legislature. United States v. Cook, 384 U.S. 257, 262, 86

S.Ct. 1412, 1514, 16 L.Ed.2d 516 (1966).

       The relevant phrase in article 46B.004(d) is “all other proceedings.” It is

difficult to imagine a broader phrase. However, there is no definition of “all,”

“other,” or “proceedings” in the Code of Criminal Procedure, nor is there any

caselaw discussing grand jury proceedings in the context of 46B.004(d).

Consequently, the reviewing court must itself analyze the statute. See TEX. CODE

CRIM. PROC. ANN. art. 3.01. (“All words, phrases and terms used in this Code are

to be taken and understood in their usual acceptation in common language . . .”).

       “All” is the word with the broadest meaning in the English language. It

means “every one.” WEBSTER’S COLLEGE DICTIONARY 36 (4th ed. 2000). “Other”

is “different or distinct from that or those referred to or implied.” Id. 1021.

Because article 46B.004(d) refers to “all other proceedings,” the question becomes

which proceedings is the article dealing with. By the statute’s terms, the court

must prohibit any kind of proceeding outside of the category referenced in the

statute.

       Chapter 46B of the Texas Code of Criminal Procedure governs the issue of

an accused person’s competency.       See Fredericksburg Care Co. v. Perez, __

S.W.3d __, 2015 WL 1035343 (Tex. 2015) (“[W]e will try to avoid construing a



                                       - 10 -
statutory provision in isolation from the rest of the statute; we should consider the

act as a whole, and not just single phrases, clauses, or sentences.”).        Article

46B.004 itself deals with the informal inquiry into the accused’s incompetency.

Article 46B.004(e), immediately following the provision in question, discusses

“proceedings under this chapter,” which chapter is titled “Incompetency to Stand

Trial.” The article as a whole governs how to identify and handle incompetent and

potentially incompetent defendants.        Accordingly, the “other” proceedings

referenced in 46B.004(d) are ones that do not deal with the accused’s competency.

      Finally, a “proceeding” is “a particular action or course of action.”

WEBSTER’S DICTIONARY 1144 (4th Ed. 2000). In the legal realm, a proceeding is

“the form and manner of conducting juridical business before a court or judicial

officer . . . including all possible steps in an action from its commencement to the

execution.” BLACK’S LAW DICTIONARY 1368 (4th ed. 1951). The convening of a

grand jury is a course of action that is part of the criminal process. In fact, “grand

jury proceedings” is a phrase in common parlance used and understood by both

attorneys and laymen alike. When a party seeks to quash or modify a subpoena

issued by a grand jury, the cause in both federal and Texas courts bears the caption

“In re Grand Jury Proceedings.”

      Moreover, the Code of Criminal Procedure itself governs “[t]he proceedings

of the grand jury . . .” See TEX. CRIM. PROC. CODE ANN. art. 20.02(a). “[T]he term



                                        - 11 -
‘proceedings’ as used in Article 20.02(a) could reasonably be understood as

encompassing matters that take place before the grand jury, such as witness

testimony and deliberations.” Similarly, the Texas Rules of Evidence establish the

evidentiary rules are not applicable in “proceedings before grand juries.” TEX. R.

EVID. 101(d)(1)(B). In re Reed, 227 S.W.3d 273, 276 (Tex. App.—San Antonio

2007, no pet.); Barnhart v. State, No. 13-08-00511-CR, 2010 WL 3420823, at *11

(Tex. App.—Corpus Christi Aug. 31, 2010, pet. ref’d).

      This conclusion aligns with the legal definition of a proceeding, set forth

above. Every step in the formation, investigation, and ultimate action of the grand

jury comprises the whole of the “grand jury proceeding.” It is clear the Texas

Legislature, in line with common understanding, considers the grand jury’s

convening, and all actions following that, to be a “proceeding.”

      Synthesizing this analysis, the Legislature’s intentions are unmistakable.

When it said “all other proceedings” it meant every action not related to

determination of the accused’s competence.        Grand jury proceedings do not

involve determination of whether the accused is competent to stand trial.

Accordingly, the grand jury convening and reviewing a case is a proceeding

encompassed in article 46B.004(d)’s “all other proceedings.”

      The cannon of expressio unius est exclusio alterius, whereby the court looks

not only at what the statute includes but also what it does not include, is also



                                       - 12 -
instructive.      First, the mandates of article 46B.004(d) do not have a defined

beginning or end.            The article does not say, “if, after indictment, the court

determines there is evidence to support a finding of incompetency, the court . . .

shall stay all other proceedings in the case.” No other provision of the article sets a

time when concern for the accused’s competency can be raised.1F1 See id. art.

46B.004(a) (stating, without temporal parameters, either party or the trial court

may suggest the defendant may be incompetent); Rothgery v. Gillespie County,

Texas, 554 U.S. 191, 194, 128 S.Ct. 2578, 2581, 171 L.Ed.2d 366 (2008)

(indicating a person formally accused at the initial appearance is a “defendant”).

The issue of the accused’s competency can be raised at any time. See Pate v.

Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966) (holding a

trial court must evaluate a defendant’s competence whenever the evidence raises

concerns about it). Consequently, the trial court is not bound to a certain time or

stage in the criminal process when it can make its determination regarding whether

it should investigate the defendant’s competency. Article 46B.004(d) applies at

any point in time.

        Also, 46B.004(d) does not contain any specific modifiers as to which

“proceedings” the trial court must stay.                     It does not direct the court to stay

“criminal proceedings;” “civil proceedings;” “trial proceedings;” or “court
1
 It is worth noting, however, article 46B.004 “includes language to encourage early and prompt court review and
evaluations of persons who might lack competency to be tried.” BRIAN SHANNON & DANIEL BENSON, TEXAS
CRIMINAL PROCEDURE AND THE OFFENDER WITH MENTAL ILLNESS: AN ANALYSIS AND GUIDE 52 (4th Ed. 2008).


                                                    - 13 -
proceedings.” Instead, as discussed above, it broadly includes all proceedings not

related to the competency determination. With these observations at hand, and

stepping back to look at the entirety of article 46B.004(d), the if-then command of

the statute becomes clear.      If the court makes the necessary evidentiary

determination, then it must stay all proceedings not related to the accused’s

competence. This includes grand jury proceedings.

               3. The Trial Court Failed to Follow Statutory Dictate

      As discussed earlier, a ministerial act is one “accomplished without the

exercise of discretion or judgment.” Poe, 98 S.W.3d at 215. “If there is any

discretion or judicial determination attendant to the act, it is not ministerial in

nature.” Id.

      In the case at bar, article 46B.004(d) is a legislative directive: given the

requisite evidentiary findings, the court “shall stay all other proceedings in the

case.” The Legislature did not leave any room for the trial court to exercise

discretion. Once the evidentiary finding was made, the court was compelled to

stay the proceedings. There were no additional determinations for the court to

make before staying the proceedings. See id. The court did not have to weigh

conflicting claims or collateral matters requiring legal resolution. See id. The

court was clearly instructed, in mandatory language, that it was to stay the




                                       - 14 -
proceedings. It failed to do so. That failure constituted a violation of a ministerial

duty. See id. Consequently, a writ of mandamus is justified.

       II. A STAY IS REQUIRED TO PROTECT MR. CHISUM’S CONSTITUTIONAL RIGHTS

       Article I, Section 10 of the Texas Constitution secures the right of the accused to be heard

“by himself or counsel, or both.” This right “is a right of which an accused can under no

circumstances be deprived.” Carlile v. State, 451 S.W.2d 511, 512 (Tex. Crim. App. 1970). The

Court of Criminal Appeals has “interpreted this provision to provide the ‘right to appear by

counsel.’” Easley v. State, 424 S.W.3d 535, 537 (Tex. Crim. App. 2014).

       The United States Supreme Court has held a defendant’s right to counsel attaches at the

initial appearance proceedings. Rothgery v. Gillespie County, Texas, 554 U.S. at 209, 128 S.Ct.

at 2590.   “[B]ringing a defendant before a court for initial appearance signals a sufficient

commitment to prosecute and marks the start of adversary judicial proceedings.” Id., 128 S.Ct.

at 2590. The Court in Rothgery specifically passed on proceedings conducted under article 15.17

of the Texas Code of Criminal Procedure and held the right to counsel attaches at such

proceedings. Id., 128 S.Ct. at 2590.

       Regardless of when a right to counsel or the right to be heard attaches, the right is of little

value if the defendant is incompetent.

       Competence to stand trial is rudimentary, for upon it depends the main part of
       those rights deemed essential to a fair trial, including the right to effective
       assistance of counsel, the rights to summon, to confront, and to cross-examine
       witnesses, and the right to testify on one’s own behalf or to remain silent without
       penalty for doing so.

Riggins v. Nevada, 504 U.S. 127, 139, 112 S.Ct. 1810, 1817, 118 L.Ed.2d 479 (1992) (Kennedy,

J., concurring in judgment). An incompetent defendant cannot communicate with counsel. He




                                               - 15 -
cannot be heard. Though he is physically present, because of his mental condition he “is in

reality afforded no opportunity to defend himself.” Drope, 420 U.S. at 171, 95 S.Ct. at 904.

       The reports of at least four doctors, one layperson, and one person familiar with Mr.

Chisum all indicate that Mr. Chisum is an incompetent person. (See Affidavit of Dr. Morgan

(Appendix C, pg. 8); Affidavit of Michael Chisum (Appendix C, pg. 5); Motion Suggesting

Incompetence and Request for Examination - Affidavits of Phillip Resnick, M.D; Phillip Davis,

Ph.D., Arun Patel, M.D.; and April Carter (Appendix A)). Every court to pass upon his case has

reached a similar conclusion. See State v. Chisum, No. 2015-820,779, “Order for Examination

Regarding Incompetency,” (Mar. 11, 2015) (Appendix B); In the Guardianship of Justin Chisum,

An Incapacitated Person, No. 2015-785,001 (Mar. 9, 2015). Mr. Chisum is severely mentally

incapacitated.

       Criminal proceedings were initiated against Mr. Chisum on February 2, 2014. Since that

time, the State has been able to build its case against Mr. Chisum. Mr. Chisum’s defense team,

on the other hand, has not been able to similarly conduct a full investigation of Mr. Chisum’s

version of the facts due to his extremely deteriorated mental state. It has long been common

practice for a defendant’s attorney to put together a packet setting forth an explanation of the

facts of the case for the grand jury’s review. See Op. Tex. Att’y Gen. No. H-508 (1975) (noting

the practice and holding such a practice does not offend any traditional rules of grand jury

proceedings). Compilation of such a packet is impossible until Mr. Chisum is returned to

competency.

       Moreover, at this point, the grand jury, were it allowed to review Mr. Chisum’s case,

could call Mr. Chisum to testify before it. TEX. CRIM. PROC. CODE ANN. art. 20.17. So far, Mr.




                                             - 16 -
Chisum has been unable to communicate with counsel about the facts of the case. The statute

permitting the grand jury to question the accused mandates,

       Prior to any questioning of an accused or suspected person who is subpoenaed to
       appear before the grand jury, the accused or suspected person . . . shall be given a
       reasonable opportunity to retain counsel or apply to the court for an appointed
       attorney and to consult with counsel prior to appearing before the grand jury.

Id. 20.17(b). Mr. Chisum “is not currently competent to proceed in the defense of his case.”

(Affidavit of Dr. Morgan, pg. 1). He lacks “the sufficient present ability to consult with his

attorneys with a reasonable degree of rationl understanding, or a rational as well as factual

understanding of the proceedings.” (Id.). Were the grand jury to subpoena him, and assuming

Mr. Chisum would be able to communicate with the grand jury, he would not understand the

rights he would be waiving in doing so.

       The State commenced adversary judicial proceedings against Mr. Chisum on February 2,

2015, at the initial appearance. See Rothgery, 244 U.S. at 209, 128 S.Ct. at 2590. Under the

Texas Constitution, Mr. Chisum has the right to counsel and the right to be heard. Mr. Chisum,

however, cannot assert these rights due to his mental state. By failing to stay the proceedings

despite strong evidence of severe incompetence, Respondent abused his discretion. See Poe, 98

S.W.3d at 215.

                                          III. PRAYER

       Relator Justin Chisum prays this Court would find that the trial court failed

to perform a ministerial duty under the Texas Code of Criminal Procedure and

abused its discretion in disregarding Mr. Chisum’s federal and state constitutional

rights to an attorney and to defend himself when it refused to grant Mr. Chisum’s

Motion to Stay Grand Jury Proceedings. Accordingly, Mr. Chisum asks the Court


                                              - 17 -
to issue a writ of mandamus directing Respondent to enter an order staying all

proceedings, including grand jury proceedings, in this case.

                                                Respectfully submitted,

                                                Law Office of Allison Clayton
                                                P.O. Box 64752
                                                Lubbock, Texas 79464-4752
                                                Phone No.: (806) 773-6889
                                                Fax No.: (888) 688-4515

                                                By:
                                                Allison Clayton
                                                State Bar No. 49059587
                                                Allison@AllisonClaytonLaw.com




                                       - 18 -
                            CERTIFICATE OF SERVICE

      I certify that on April 16, 2015, a copy of this brief was served on opposing

counsel, Jeffrey S. Ford of the Lubbock County District Attorney’s Office and on

the trial court, the Honorable William R. Eichman, II, of the 364th District Court

of Lubbock County, Texas, via electronic mail.



                                                Allison Clayton


                         CERTIFICATE OF COMPLIANCE

      I certify the foregoing Brief on the Merits complies with Rules 9.4(i)(2)(A)

and 70.3 of the Texas Rules of Appellate Procedure. The brief, excluding those

portions detailed in Rule 9.4(i) of the Texas Rules of Appellate Procedure, is 4141

words long. I have relied upon the word count function of Microsoft Word, which

is the computer program used to prepare this document, in making this

representation.



                                                Allison Clayton




                                       - 19 -
Appendix A




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