             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. AP-76,580



                           ALBERT JAMES TURNER, Appellant

                                                 v.

                                   THE STATE OF TEXAS

              ON DIRECT APPEAL FROM CAUSE NO. 10-DCR-054233
                       IN THE 268 TH DISTRICT COURT
                           FORT BEND COUNTY

        K ELLER, P.J., filed a dissenting opinion in which M EYERS, K EASLER and H ERVEY,
JJ., joined.

       Appellant, who has no history of mental illness, understands what he is accused of and the

nature of the proceedings, and he understands who his attorneys are and that they are tasked with

representing him. His refusal to cooperate with his attorneys does not, in my view, make him

incompetent to stand trial. The Court maintains, however, that there is some evidence that appellant

is incompetent to stand trial as a result of paranoid delusions about his attorneys’ motives and other
                                                                        TURNER DISSENT — 2

aspects of the case. I disagree.

       Under our statute a person is incompetent to stand trial if he does not have:

       (1) sufficient present ability to consult with the person’s lawyer with a reasonable
       degree of rational understanding; or

       (2) a rational as well as factual understanding of the proceedings against the person.1

No one disputes appellant’s competence under part (2); that is, no one suggests that he lacks a

rational as well as factual understanding of the proceedings against him. The issue before us is his

competence under part (1), whether he has sufficient present ability to consult with his lawyer with

a reasonable degree of rational understanding.

       The trial court had before it three types of evidence relevant to this determination: (1) expert

evaluations, (2) statements by appellant’s attorneys, and (3) appellant’s own statements. None of

this evidence shows that appellant lacked the sufficient present ability to consult with his attorneys

with a reasonable degree of rational understanding.

                                          A. The Experts

       Appellant was first evaluated by Dr. Karen Gollaher in May of 2010. He largely cooperated

with the competency evaluation but would not discuss his actual actions at the time of the crime in

order to protect his Fifth Amendment rights. Although appellant reported some possible paranoid

thoughts, Dr. Gollaher concluded that “these do not undermine his ability to participate in the court

procedures.” With respect to competence to stand trial, Dr. Gollaher found:

       Mr. Turner knows the charge against him and a possible punishment. He
       understands the role of various courtroom person[ne]l, the available pleas and the
       plea bargaining process . . . . [H]e was concerned that his version of events was heard
       by the public and he discussed issues that might be considered mitigating. This


       1
           TEX . CODE CRIM . PROC. art. 46B.003(a).
                                                                       TURNER DISSENT — 3

       suggests that he does have an interest in defending himself and may not be as
       indifferent as he presents himself to be. He is capable of communicating events in
       an understandable manner and can report his state of mind.

Dr. Gollaher ultimately concluded that, within a reasonable degree of certainty, appellant was

currently competent to stand trial.

       In June of 2010, appellant was evaluated by Dr. David Axelrad. Dr. Axelrad said that

appellant “may have a mental illness and the diagnosis may be a paranoid disorder” but that

appellant was unwilling to disclose the nature of the relationship with his wife immediately

preceding the commission of the murders. Though appellant might benefit from psychiatric

medications (which he was refusing to take), Dr. Axelrad nevertheless concluded that appellant “is

presently mentally competent to stand trial.”

       In April of 2011, appellant was referred by his attorneys to Dr. Shawanda Williams-

Anderson. She concluded, “Because of the seriousness of Mr. Turner’s charges, his unwillingness

to participate in his defense, and his extreme distrust of every member of his team his competency

to stand trial is questionable.” She further stated that appellant is “making 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 concluded that, “To date, his participation and involvement have had adversarial

effects and hindered the defense team in every way. Therefore, Mr. Turner cannot be expected to

comply with his team during the progression of his defense including trial. Under Article 46B, Mr.

Turner’s actions would deem him incompetent to stand trial.”

       Essentially, Dr. Williams-Anderson conceded that appellant had the mental capacity to stand

trial but concluded that appellant distrusted the defense team and was acting in a way detrimental
                                                                         TURNER DISSENT — 4

to his defense. But Dr. Williams-Anderson’s focus on appellant’s motives and actions is beside the

point. Appellant had the mental capacity to work with the members of his defense team but chose

not to work with them because he distrusted them. Dr. Williams-Anderson’s conclusion that

appellant’s “actions would deem him incompetent to stand trial” is faulty because a person’s actions

can never render him incompetent to stand trial. It is the person’s mental ability that matters.

       Finally, at the urging of defense counsel, the trial court appointed Dr. M. Connie Almeida

to evaluate appellant in May of 2011. Dr. Almeida said that she could not reach a professional

opinion regarding appellant’s competency to stand trial based on her interview “because of his

limited cooperation.” However, based on her review of records, interview with jail staff, and her

limited interview with appellant, it was her professional opinion that appellant’s “functioning has

not changed significantly since his previous assessments of competency” by Dr. Gollaher and Dr.

Axelrad. “It is my opinion,” she stated “that there have been no significant changes in Mr. Turner’s

emotional or cognitive functioning since the time of these evaluations (6/1/10 and 6/18/10) that

would adversely impact his competency to stand trial at the present time.” When questioned at a

hearing, Dr. Almeida stated that she could not definitively say that he was not paranoid and that such

condition was not interfering with his ability to rationally assist his defense. But she also affirmed,

“There is no current evidence to substantiate a delusional or other psychiatric disorder.”

                                         B. The Attorneys

       Attorneys Tyrone Moncriffe and Patrick McCann executed affidavits, but these affidavits

were not directly introduced into evidence before the trial court. Some of the content of these

affidavits was introduced through Dr. Almeida’s testimony. Dr. Almeida summarized these

affidavits as expressing the concern that appellant was accusing counsel of coercion, hiding and
                                                                        TURNER DISSENT — 5

misusing information, and not representing appellant’s best interests. Counsel elicited testimony

from Dr. Almeida that appellant actually believed that the defense attorneys were coercing

appellant’s children into testifying against him and that McCann was part of a secret society that

desired appellant’s conviction. Dr. Almeida also recalled that Moncriffe had “indicated several

instances of delusional comments and thinking.” It was partly based upon these affidavits that Dr.

Almeida said that she could not definitively say that appellant did not have a paranoid condition that

was interfering with his ability to assist his defense. But even considering those affidavits, Dr.

Almeida nevertheless testified that appellant’s condition had not changed from the prior interviews

and that there was no current evidence to substantiate a delusional or other psychiatric disorder.

       At the conclusion of the hearing, McCann argued that appellant’s paranoia had impaired the

defense because appellant was refusing to discuss any of the jurors with counsel during voir dire.

McCann conceded that “examinations in the year prior,” by Dr. Gollaher and Dr. Axelrad, “although

they showed some of the problem, did not at that time rise to the level, in their opinion of

incompetency.” But McCann said, “I can tell you that it has materially changed over the last several

months, perhaps only because of the proximity of the actual case that’s brought this out, but it

has—it has brought us to a complete standstill in our ability to determine or advise Mr. Turner about

whether to testify or whether to assist in any of this.” At that point, the prosecutor interjected, “I

don’t—I don’t mind him arguing, but I’ve got to be able—to be able to cross-examine somebody if

he’s going to give you new evidence, Judge.” McCann responded, “He’s right. He’s right, and I’ll

rephrase that. The Court has watched Mr. Moncriffe and myself struggle with what appeared at first

to us to be a recalcitrant client and it has—has clearly, to us, gotten beyond that.”

       McCann remarked that, “I’ve never been in a place where the client has withdrawn to this
                                                                        TURNER DISSENT — 6

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 demeanor and behavior over the last several months.

McCann urged the trial court “to give us a chance to sit there and flesh this out during a competency

trial, and even if necessary, to appoint Mr. Turner other counsel and allow Mr. Moncriffe and I to

testify and subject us to cross.”

       I believe an attorney’s statements about his client’s mental state can, in appropriate

circumstances, raise an issue of incompetency without regard to expert testimony. But sometimes

an attorney’s observations, especially with respect to delusions, are not alone a sufficient basis for

concluding that a defendant is incompetent.2 Regardless, in the present case, the defense attorneys

specifically refrained from relying upon their own recollections as evidence. Their affidavits were

not introduced into evidence and were addressed only as part of the basis for Dr. Almeida’s opinions.

But as explained above, Dr. Almeida ultimately concluded, despite these affidavits, that there was

no current evidence to substantiate a delusional or other psychiatric disorder. And in making

statements to the trial court, McCann refrained from framing those statements as testimony, which

would have subjected him to cross-examination. Instead, he invited the trial court to rely upon its

own observations.

       Pointedly, the trial court articulated its own observations, concluding that there was no

evidence of incompetency, as follows:

       I have watched Mr. Turner throughout these several weeks that we’ve been going
       through the jury selection. He has been paying attention; he has been reacting. Your
       comment this afternoon about suspicion had a definite reaction from Mr. Turner, so


       2
          See Panetti v. Quarterman, 551 U.S. 930, 962 (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.”).
                                                                         TURNER DISSENT — 7
       he’s paying attention. He knows what’s going on. The fact that he will not talk to
       you, while that makes defense counsel’s representation difficult, it doesn’t rise to the
       level of incompetency. The evidence just doesn’t show that. And the case cited by
       the prosecution in this case recognizes that behavior alone doesn’t meet the
       requirements. It’s one part of a whole matter that has to be looked at. I wanted to
       hear evidence that would lead us to a full hearing, but I have not heard that; therefore,
       I’m denying it.

       Even if the attorneys’ observations were taken as evidence, those observations do not indicate

that appellant was incapable of consulting with his attorneys with a reasonable degree of rational

understanding. They show merely that he was unwilling to do so. No one disputes that appellant

understood what the proceedings were about and that he was mentally able to consult with the

attorneys if he so desired. That he lacked the desire to do so is not evidence of incompetence. And

to the extent appellant’s lack of cooperation escalated, this was based on the fact that the attorneys

progressively engaged in tactics with which appellant disagreed, e.g. deposing appellant’s children,

and by the fact that the trial date loomed ever closer, both of which are at least somewhat rational

explanations for appellant’s uncooperative behavior.

                                    C. Appellant’s Testimony

        Appellant testified at trial that he did not commit the murders and that he was not even

present at the time. He also testified 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 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. Appellant also made statements that indicated he believed the defense attorney and

the prosecutor were suppressing evidence and conspiring to convict him.

       On redirect, McCann asked appellant, “Mr. Turner, in your mind, all that drivel was true,
                                                                          TURNER DISSENT — 8
wasn’t it?” Appellant responded, “It is true.”

        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. He went out

and got a—tried to get a doctor to rule me incompetent. And the reason that he was trying to do that

. . . another defense attorney here tried to get legal guardianship of me so they could file stuff on my

behalf instead of getting my family members.”

        Appellant would not be the first guilty defendant to refuse to cooperate with his attorneys.

Despite overwhelming evidence showing that he intentionally killed two people, appellant wanted

an acquittal. He concocted a far-fetched story to attempt to show his innocence. It might not be an

exaggeration to say that his position was extremely shortsighted and wrongheaded, but that does not

make him incompetent. His attorneys refused to go along with appellant’s desired strategy. While

I don’t fault them for that, it is understandable that appellant would. The attorney-client relationship

had deteriorated to the point that his own attorney was calling his testimony “drivel.” It is not

difficult to see why appellant is upset with them. Appellant has been an extraordinarily difficult

client who seems to have made bad choices about trial strategy. But bad choices are not the same

as irrational choices, except in the loosest, non-legal sense. To the extent that the Court conflates

the two, I believe that it errs.

        The trial court was within its discretion to find, after the testimony of three expert witnesses,

that appellant had not established a right to a full hearing.

        I respectfully dissent.

Filed: October 30, 2013
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