                                                                                     WR-82,875-01
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
August 11, 2015                                                       Transmitted 8/10/2015 6:10:58 PM
                                                                        Accepted 8/11/2015 8:14:12 AM
                                                                                        ABEL ACOSTA
                         NOS. WR-82,875-01 and WR-82,875-02                                     CLERK

                     IN THE TEXAS COURT OF CRIMINAL APPEALS

                        RELATING TO CAUSE N0. 10-DCR-054233
                  268TH DISTRICT COURT, FORT BEND COUNTY, TEXAS


          IN RE THE STATE OF TEXAS EX REL. JOHN F. HEALEY, JR.
              DISTRICT ATTORNEY, 268TH JUDICIAL DISTRICT

                                        VS.

                  HONORABLE BRADY G. ELLIOTT, JUDGE PRESIDING
                    268TH DISTRICT COURT, FORT BEND, COUNTY


                          STATE’S BRIEF ON THE ISSUES
                          DESIGNATED BY THIS COURT


                                              JOHN F. HEALEY, JR.
                                              District Attorney, 268th Judicial District

                                              Fred M. Felcman
                                              First Assistant District Attorney

                                              Chad Bridges
                                              Lesleigh Morton
                                              Assistant District Attorneys

 --Oral Argument Requested--                  Gail Kikawa McConnell
                                              Assistant District Attorney
                                              SBOT #11395400
                                              301 Jackson Street, Room 101
                                              Richmond, Texas 77469
                                              (281) 341-4460 / (281) 238-3340 (fax)
                                              Gail.McConnell@fortbendcountytx.gov

                                              Counsel for the Relator, State of Texas
          IDENTITY OF THE JUDGE, PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.1, the parties and the names and addresses of all

counsel to Respondent’s order for a present competency jury trial are as follows:

The State of Texas                                                              Relator

John F. Healey, Jr.                           District Attorney, 268th Judicial District
Fred M. Felcman                                        First Assistant District Attorney
Chad Bridges                                                 Assistant District Attorney
Lesleigh Morton                                              Assistant District Attorney
Gail Kikawa McConnell                                        Assistant District Attorney
301 Jackson Street, Room 101
Richmond, Texas 77469


Hon. Brady G. Elliott, Presiding Judge                                     Respondent
268th District Court
301 Jackson Street
Richmond, Texas 77469


Albert James Turner                                               Real Party in Interest
TDCJ # 00999565

Robert A. Morrow                                    Attorney for Real Party in Interest
24 Waterway Ave, Suite 660
The Woodlands, TX 77380

Amy Martin                                          Attorney for Real Party in Interest
202 Travis St, Suite 300
Houston, TX 77002




                                          i
                                        TABLE OF CONTENTS


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

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

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . x

ISSUES DESIGNATED BY THIS COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

         1.       Must a defendant be presently competent in order for a
                  retrospective competency trial to occur?

         2.       If so, does the trial court have the authority to require a jury to
                  determine the issue of present competency?

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         State’s Answer to Issue One: No, a person need not be presently
         competent in order for a retrospective competency trial to occur . . . . . . . . . 7

         A.       There is no constitutional right to be competent for a retrospective
                  competency trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                  1.       A defendant has no right to be competent to assist counsel
                           at a retrospective competency trial . . . . . . . . . . . . . . . . . . . . . . 8

                  2.       A defendant has no right to be competent under the
                           Confrontation Clause for a retrospective competency trial . . . 9


                                                          ii
      3.        A retrospective competency trial is not about guilt or
                innocence, and a defendant has no right to the presumption
                of innocence under the Due Process Clause . . . . . . . . . . . . . . 10

      4.        The State has found no reason to provide greater rights
                under the Texas Constitution . . . . . . . . . . . . . . . . . . . . . . . . . 11

B.    There is no statutory right to be competent at a retrospective
      competency trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C.    There is no rational reason to require present competency to stand
      a retrospective competency trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

      1.        Evidence of a defendant’s competency is derived from
                independent sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

      2.        A breakdown in the adversarial process occurs if a
                defendant’s recollection of competency is credited . . . . . . . . 14

      3.        A present competency trial is duplicitous of the
                retrospective competency trial . . . . . . . . . . . . . . . . . . . . . . . . 15

State’s Answer to Issue Two: This issue is inapplicable because a
defendant need not be competent for a retrospective competency trial . . . 18

A.    Because a person need not be competent for a retrospective
      competency trial, the second issue is inapplicable . . . . . . . . . . . . . . 18

B.    A trial court’s jurisdiction on remand is limited to the mandate of
      this Court, which required the trial court to determine feasibility
      of a retrospective competency trial . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C.    Respondent asserts he has authority under the Texas Constitution
      to empanel a jury to determine present competency, but no law
      requires present competency for a retrospective competency trial
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

D.    Substantial evidence regarding competency, including audio-video
      recordings of jail visits during the course of the capital murder

                                                 iii
                  trial, are available, and a retrospective competency trial is feasible
                  regardless of Turner’s present competency . . . . . . . . . . . . . . . . . . . 21

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF COMPETENT EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX M




                                                           iv
                                   INDEX OF AUTHORITIES

CASES                                                                                                  PAGE

Baker v. State,
      297 S.E.2d 9 (Ga. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Brandon v. State,
     599 S.W.2d 567 (Tex. Crim. App. 1979),
     vacated on other grounds 453 U.S. 902 (1981) . . . . . . . . . . . . . . . . . . 12, 22

Bundy v. Dugger,
     816 F.2d 564 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cooper v. Oklahoma,
     517 U.S. 348 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Drope v. Missouri,
     420 U.S. 162 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Dusky v. United States,
     362 U.S. 402 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Dusky v. United States,
     271 F.2d 385 (8th Cir. 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Estelle v. Smith
       451 U.S. 454 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ex parte Mines,
      26 S.W.3d 910 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . 9, 10-11

Ex parte Watson,
      606 S.W.2d 902 (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . 6, 19

Greene v. State,
     264 S.W.3d 271 (Tex. App.--San Antonio 2008, pet. ref’d) . . . . . . . . . . 1, 8



                                                       v
In re McCann,
       422 S.W.3d 701 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Leisure v. State,
      828 S.W.2d 872 (Mo. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Medina v. California,
     505 U.S. 437 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 13

Pate v. Robinson,
      383 U.S. 375 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13, 22

People v. Ary,
      246 P.3d 322 (Ca. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Lightsey,
      279 P.3d 1072 (Ca. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15, 17

Riggins v. Nevada,
      504 U.S. 127 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ryan v. Gonzales,
     133 S.Ct. 696 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

State v. Basile,
       942 S.W.2d 342 (Mo. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Davis,
       506 S.E.2d 455 (N.C. 1988), cert denied 526 U.S. 1161 (1999) . . . . . . . . 10

State v. Herndon
       215 S.W.3d 901 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State v. Holloway,
       360 S.W.3d 480 (Tex. Crim. App. 2012), abrogated on other grounds
       Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014) . . . . . . . . . . . 19




                                                       vi
State v. McRae,
       594 S.E.2d 71 (N.C. Ct. App.),
       pet. denied 599 S.E.2d 911 (N.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Tate v. State,
      896 P.2d 1182 (Okla. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Turner v. State,
      422 S.W.3d 676 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . ix, 1, 16

United States v. David,
      511 F.2d 355 (D.C. Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States ex rel. Roth v. Zelker,
      455 F.2d 1105 (2nd Cir.), cert. denied, 408 U.S. 927 (1972) . . . . . . . . . . . 13

White v. State,
      591 S.W.2d 851 (Tex. Crim. App. 1979), overruled on other grounds
      Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) . . . . . . . . . . . . 9-10


UNITED STATES CONSTITUTION
    Amendment V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11
    Amendment VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9


STATUTES AND RULES

CODE OF CRIMINAL PROCEDURE
    Article 46.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
    Article 46B.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
    Article 46B.005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
    Article 46B.006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
    Article 46B.024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
    Article 46B.052 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15




                                                        vii
TEXAS RULES OF APPELLATE PROCEDURE
    Rule 4.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
    Rule 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TEXAS RULES OF CIVIL PROCEDURE
    Rule 233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


OTHER AUTHORITIES

Cal. Penal Code Ann. §§ 1369(a), 1370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Francis C. Amendola, et. al., 22A C.J.S. Criminal Law § 791,
      “Retrospective Hearings” (March 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Brakel, Parry, & Weiner, The Mentally Disabled and the Law . . . . . . . . . . . . . . 13

George E. Dix & John M. Schmolesky,
     43 Texas Practice Series: Criminal Practice and Procedure § 31:81,
     “Retrospective competency determinations” (3d ed. Westlaw 2014)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20, 22




                                                          viii
                   NOS. WR-82,875-01 and WR-82,875-02
              IN THE TEXAS COURT OF CRIMINAL APPEALS

                RELATING TO CAUSE N0. 10-DCR-054233
         268TH DISTRICT COURT, FORT BEND COUNTY, TEXAS


      IN RE THE STATE OF TEXAS EX REL. JOHN F. HEALEY, JR.
          DISTRICT ATTORNEY, 268TH JUDICIAL DISTRICT

                                          VS.

         HONORABLE BRADY G. ELLIOTT, JUDGE PRESIDING
           268TH DISTRICT COURT, FORT BEND, COUNTY


                        STATE’S BRIEF ON THE ISSUES
                        DESIGNATED BY THIS COURT


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

                          STATEMENT OF THE CASE

      This is a death penalty case on remand to Respondent, Honorable Brady G.

Elliott, Judge Presiding, 268th District Court, Fort Bend County, Texas to determine

whether a retrospective competency jury trial is feasible, and if so, to hold that trial.

Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013). Respondent set a

jury trial on Turner’s present competency to determine whether a retrospective

competency trial is feasible. Relator seeks a writ of mandamus and/or prohibition to

order Respondent to honor this Court’s mandate ordering the trial court, not a jury, to



                                           ix
determine feasibility.

      This Court granted leave to file Relator’s petitions for writs of mandamus and

prohibition, designated two issues, and asked for briefing. The parties briefs are due

forty-five days from the date of the Court’s order granting leave to file or August 8,

2015. Because August 8, 2015, is a Saturday, the briefs are due on Monday, August

10, 2015. Tex. R. App. P. 4.1(a).


              STATEMENT REGARDING ORAL ARGUMENT

      Relator requests oral argument. The character of a retrospective competency

trial has not been defined by this Court. The character of a retrospective competency

will determine whether a defendant must be presently competent for that trial.


                   ISSUES DESIGNATED BY THIS COURT

      1.     Must a defendant be presently competent in order for a
             retrospective competency trial to occur?

      2.     If so, does the trial court have the authority to require a jury to
             determine the issue of present competency?




                                          x
                            STATEMENT OF FACTS

      On October 30, 2013, this Court remanded this case, instructing:

      On remand, the trial court shall first determine whether it is presently
      feasible to conduct a retrospective competency trial, given the passage
      of time, availability of evidence, and any other pertinent considerations.
      Should the trial court deem a retrospective competency trial to be
      feasible, it shall proceed to conduct such a trial in accordance with
      Chapter 46B, Subchapter C, of the Code of Criminal Procedure.
      Regardless of whether the trial court deems a retrospective competency
      trial to be feasible, the record of the proceedings on remand shall then be
      returned to this Court for reinstatement of the appeal.

Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013) (footnotes omitted).

      On May 30, 2014, the trial court held a hearing on the feasibility of a

retrospective competency trial. [App. A,1 RR-5/30/14 at 1, 4] At that hearing, for the

first time, Turner presented the Court with Greene v. State, 264 S.W.3d 271, 272 (Tex.

App.--San Antonio 2008, pet. ref’d), holding that a defendant must be presently

competent to stand a retrospective competency trial. [App. A, RR-5/30/14 at 6]

Although the trial court had “no doubt in my mind that he was competent,” the trial

court ordered Turner and the State to each provide an expert to evaluate Turner for

his present competency “to make a full record for the Court of Criminal Appeals.”

[App. A, RR-5/30/14 at 16, 17]


      1
             The appendices referenced herein are to those filed with Relator’s
petitions for writs of mandamus and prohibition and the supplemental appendix
appended to this brief.


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

ruling to determine Turner’s present competency, which was denied on July 2, 2014.

[App. B]

      On July 7, 2014, this Court filed the State’s motion to enforce the Court’s

mandate, arguing that this Court’s mandate did not contemplate present competency

to be considered in determining whether a retrospective competency trial is feasible.

This Court did not rule on the State’s motion before it stored this case on January 29,

2015. The instant petition for mandamus supercedes the State’s motion.

      The trial court appointed Dr. Mary Alice Conroy, a psychologist on the

recommendation of Turner. [App. C] The trial court also appointed Dr. Mark

Moeller, a psychiatrist on the recommendation of the State. [App. C] Turner refused

to see either doctor and neither doctor filed a report. [App. C]

      On September 25, 2014, the trial court found that a retrospective competency

trial is feasible and set this cause for trial on December 1, 2014. [App. D]

      On November 24, 2014, the parties agreed to reset the retrospective competency

trial to January 26, 2015. [App. E] On January 16, 2015, Turner re-urged his motion

to determine present competency, which the trial court denied after reaffirming that

a retrospective competency trial was feasible. [App. F, RR-1/16/15 at 1, 15-16]

      Turner then filed a petition for writ of mandamus and writ of prohibition in this

Court. The State filed a response in opposition, supporting the trial court’s ruling, and

                                           2
also arguing that the denial of a present competency determination could be

considered by this Court when the appeal was reinstated. This Court denied leave to

file without issuing a written order. In re Albert James Turner, WR-80,559-02 (Tex.

Crim. App. Jan. 26, 2015).

      On January 26, 2015, the trial court affirmed its decision that “it’s feasible to

have the retrospective competency hearing.” [App. G, RR-1/26/15 at 1, 15-16]

      On February 3, 2015, with a jury venire waiting, Respondent changed its order.

[App. H, RR-2/3/15 at 17; App. I] In setting this case for trial on March 16, 2015,

Respondent stated:

      Upon the finding of that jury on present competency, if they find Mr.
      Turner competent, then we will promptly move with finding another--
      with impaneling another jury to determine the retrospective competency
      of Mr. Turner at the time of the trial because if this present competency
      jury finds him competent, then it’s--the finding of feasibility’s made.
      Then we’ll go retrospective.

[App H at 17, emphasis added]

      Respondent appointed Dr. Floyd Jennings and Dr. Connie Almeida to evaluate

Turner for present competency. [App. I] Dr. Jennings’s report is appended hereto as

Appendix M. Although Turner was uncommunicative in an attempted evaluation, Dr.

Jennings reviewed collateral material, including Turner’s telephone calls to his family

made while awaiting the retrospective competency trial, and found Turner

“COMPETENT” to proceed. [App. M at 3, 6-7, 10]


                                          3
      On February 13, 2015, Respondent denied the State’s motion for

reconsideration. [App. J]

      On February 13, 2015, the State filed its motion for leave to file and petitions

for writs of mandamus and prohibition. On March 4, 2015, this Court stayed the jury

trial on present competency and invited responses to the State’s motion for leave to

file. Turner responded on April 17, 2015.

      This Court then filed this cause and requested briefing on designated issues.

Respondent filed his brief on July 30, 2015.


                       SUMMARY OF THE ARGUMENT

      A retrospective competency trial is not a criminal proceeding; the jury decides

only whether the evidence proves by a preponderance of the evidence that the

defendant was incompetent during the trial on his offense. A competency trial is not

about the guilt-innocence, or sentencing, and this Court has held that it is a civil

proceeding. A retrospective competency trial will place the defendant in a position

comparable to the one he would have been placed during the trial on his offense. A

retrospective competency trial is a civil proceeding.

      There are three reasons why there is no inherent right to be competent for a

retrospective competency trial.

      First, there is no constitutional right to be competent for a retrospective


                                          4
competency trial.    A defendant in a civil proceeding has no Due Process or

Confrontation Clause rights such as the right to be present or competent at trial.

Further, even though competence to stand trial is partly defined by a person’s present

ability to consult with counsel, the right to be competent at trial does not derive from

the right to the assistance of counsel. In a retrospective competency trial, the right to

the reasonable assistance of counsel is unaffected by the present competence of the

defendant because the trial looks backwards. The evidence is record based in nature;

therefore, counsel can reasonably assist a defendant regardless of the defendant’s

competence.

      Second, there is no statutory right to competency at a retrospective competency

trial. Code of Criminal Procedure Chapter 46B provides procedures for determining

whether a defendant is competent to stand trial on the offense irrespective of the

defendant’s current competency. For instance, counsel for the defendant decides

whether to waive a jury trial, not the defendant.

      Third, there is no rational reason to require a defendant to be presently

competent for a retrospective competency trial.           Evidence of a defendant’s

competency is derived from independent sources such as expert psychiatric testing and

opinion, the observations of others, and audio and video recordings of the defendant

at the time of the trial on the offense. A defendant’s present recollection of his

competency at the time of the trial on the offense either defeats the purpose of the

                                           5
competency trial (he was competent), or is suspect (he was incompetent). And the

determination of present competency ultimately depends on the same evidence and

ultimate issue to be determined by a jury on retrospective competency--did the

defendant have the capacity to rationally understand the legal issues and options at the

trial on the offense to consult with his lawyer?

      The trial court’s authority to determine feasibility derives from this Court’s

mandate. Like that in Watson v. State, 606 S.W.2d 902 (Tex. Crim. App. 1980), the

mandate in this case remands the case to the trial court to determine feasibility, not a

jury. The trial court does not have authority under the mandate to empanel a jury to

decide feasibility. Further, because a person has no inherent right to present

competency for a retrospective competency trial, the trial court has no legal basis to

empanel a jury to determine present competency. Lastly, substantial evidence of

Turner’s competency at the time of his trial for capital murder exists and a

retrospective competency trial is feasible regardless of Turner’s present competency.




                                           6
                                    ARGUMENT

      Issue One:           Must a person be presently competent in order
                           for a retrospective competency trial to occur?

      State’s Answer: No, a person need not be presently competent in
                      order for a retrospective competency trial to
                      occur.

      A.     There is no constitutional right to be competent for a retrospective
             competency trial.

      “We have repeatedly and consistently recognized that ‘the criminal trial of an

incompetent defendant violates due process.’” Cooper v. Oklahoma, 517 U.S. 348,

354 (1996) (quoting Medina v. California, 505 U.S. 437, 453 (1992); Drope v.

Missouri, 420 U.S. 162, 171-172 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966)).

      “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. Drope v. Missouri, 420
      U.S. 162, 171-172 (1975).” Riggins v. Nevada, 504 U.S. 127, 139-140
      (1992) (opinion concurring in judgment).

Cooper, 517 U.S. at 354 (footnote omitted).

      However, the “trial” referred to in Cooper, Medina, Riggins, Drope, Pate, and

Dusky v. United States, 362 U.S. 402 (1960), is the trial on guilt-innocence of an

offense, not a retrospective competency trial. Cooper, 517 U.S. at 350-51; Medina,

505 U.S. at 440-41; Riggins, 504 U.S. 132 ; Pate, 383 U.S. at 377; Drope, 420 U.S.

at 162; Dusky v. United States, 271 F.2d 385, 386-87 (8th Cir. 1959).

                                           7
      The State has found no constitutional right to be competent for a retrospective

competency trial.

             1.     A defendant has no right to be competent to assist counsel
                    at a retrospective competency trial.

      Turner and Respondent rely on Greene v. State, 264 S.W.3d 271, 273 (Tex.

App.--San Antonio 2008, pet. ref’d), in arguing that a defendant must be competent

to assist his counsel and testify at the retrospective competency trial. [App. A at 6;

Respondent’s Br at 3, 4] However, the Greene Court mistakenly believed that Greene

must be presently competent because “he should not be deprived of his right to assist

counsel.” 264 S.W.3d at 273.

      Five years after Greene, the United States Supreme Court in Ryan v. Gonzales,

133 S.Ct. 696 (2013), held that the right to competence does not derive from the right

to counsel. “Notwithstanding the connection between the right to competence at trial

and the right to counsel at trial, we have never said that the right to competence

derives from the right to counsel.” Ryan, 133 S.Ct. at 703.

       In Ryan, the Supreme Court considered whether a federal habeas statute

provides a statutory right to competence in habeas proceedings to assist counsel in

bringing habeas claims. Id. 702. The Court reasoned, “Given the backward-looking,

record-based nature of most federal habeas proceedings, counsel can generally provide

effective representation to a habeas petitioner regardless of the petitioner’s


                                          8
competence.” Ryan, 133 S.Ct. at 704.

      Likewise, a retrospective competency trial is backward-looking, and the

relevant evidence of the defendant’s competency at trial on the offense is record-based

in nature, i.e., fixed at the time of that trial. Counsel can generally provide effective

representation at the retrospective trial regardless of the defendant’s present

competence.

              2.    A defendant has no right to be competent under the
                    Confrontation Clause for a retrospective competency trial.

      In Ex parte Mines, this Court considered whether a person who is sentenced to

death has a right to be competent to assist counsel in filing an application for habeas

relief. Ex parte Mines, 26 S.W.3d 910, 911 (Tex. Crim. App. 2000). This Court held

a person does not have a right to be competent in habeas proceedings. Id. at 914-15.

In specifically finding that in habeas proceedings a person has no right to be

competent under the Confrontation Clause, this Court cited:

      State v. Basile, 942 S.W.2d 342 (Mo. 1997) (motion for post-conviction
      relief is civil proceeding and therefore there is no due process right to be
      present); Leisure v. State, 828 S.W.2d 872 (Mo. 1989) (for same reason
      there is no right under Confrontation Clause to be present).

Ex parte Mines, 26 S.W.3d at 914, n.26.

      In White v. State, 591 S.W.2d 851 (Tex. Crim. App. 1979), overruled on other

grounds by Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994), this Court held

that the nature of a competency hearing is “civil in nature.” Id. at 854; see also Baker

                                           9
v. State, 297 S.E.2d 9, 12 (Ga. 1982) (competency proceeding “is civil in nature”).

Because a competency proceeding is civil in nature, “Rule 233 of the Texas Rules of

Civil Procedure should control and that the defendant and the State should be

permitted six peremptory challenges each.” White, 591 S.W.2d at 854.

      Likewise, because a retrospective competency trial is civil in nature, a person

does not have the right to be competent under the Confrontation Clause. See also

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

2004) (holding that retrospective competency hearings do not implicate that right,

quoting State v. Davis, 506 S.E.2d 455, 466 (N.C. 1988), cert denied 526 U.S. 1161

(1999) (competency hearings “[do] not implicate defendant’s confrontation rights”)).

             3.    A retrospective competency trial is not about guilt or
                   innocence, and a defendant has no right to the presumption
                   of innocence under the Due Process Clause.

       “While a defendant may be under pending criminal charges, the issue of his

guilt or innocence is not to be determined and punishment is not to be assessed at the

competency hearing.” White, 591 S.W.2d at 854.

      This Court has noted that requiring a person to be competent at the trial on his

offense “preserves the presumption of innocence by ensuring that a criminal defendant

can help the defense attorney defend the client.” Ex parte Mines, 26 S.W.3d at 914

(holding that a person in a habeas proceeding is no longer presumed innocent and has

no right to be competent under the Due Process Clause). A defendant must be

                                         10
competent “to communicate to counsel the facts necessary to mount an effective

defense.” Id. But, a retrospective competency trial is not about guilt or innocence or

punishment, and competency is not a defense.

      A retrospective competency trial does not have a substantial relation to a

defendant’s opportunity to defend and does not implicate a defendant’s constitutional

rights. McRae, 594 S.E.2d at 79.

      A person has no right to be competent under the Due Process Clause.

             4.    The State has found no reason to provide greater rights
                   under the Texas Constitution.

      As shown below, there is no statutory or rational reason for a person to be

presently competent for a retrospective competency trial. The State has not found any

authority or reason to provide a person greater rights under the Texas Constitution to

be competent at a retrospective competency trial.

      B.     There is no statutory right to be competent at a retrospective
             competency trial.

      The Code of Criminal Procedure provides for the determination of competency

to stand trial in Chapter 46B and competency to be executed in Article 46.05, but the

Code does not provide for a determination of competency to stand a retrospective

competency jury trial.

      A retrospective competency trial simply places a defendant “in a position

comparable to the one he would have been placed in prior to the original trial.”

                                         11
People v. Ary, 246 P.3d 322, 330 (Calif. 2011) (quoting Tate v. State, 896 P.2d 1182,

1188 (Okla. Crim. App. 1995)); see also, Brandon v. State, 599 S.W.2d 567, 573

(Tex. Crim. App. 1979), vacated on other grounds 453 U.S. 902 (1981) (collecting

cases in support of its holding, “There is, however, ample authority that the

requirements of due process may be fully met as it concerns the appellant here if he

were now granted a trial to determine, after the fact, whether he was competent at the

time he was tried and convicted.”).

      Chapter 46B, Code of Criminal Procedure provides procedures for determining

competency to stand trial. The sole issue to be decided by a jury at a competency trial

is “whether the defendant is incompetent to stand trial?” Tex. Code Crim. Proc. art.

46B.052(a) (West 2009). Chapter 46B does not even contemplate a prerequisite that

a defendant be presently competent for a competency jury trial.

      In fact, Article 46B.005 authorizes counsel, not the defendant, to waive a jury

trial on the issue of competency. Tex. Code Crim. Proc. art. 46B.005 (West 2009).

If a defendant’s competence is suspect, “it is impossible to say whether a defendant

whose competence is in doubt has made a knowing and intelligent waiver of his right

to a competency hearing.” Medina, 505 U.S. at 450. If the defendant’s competence

is suspect, it follows that there is no right to be presently competent for a trial on the

issue of his competence.



                                           12
      C.     There is no rational reason to require present competency to
             stand a retrospective competency trial.

             1.     Evidence of a defendant’s competency is derived from
                    independent sources.

      In Medina v. California, 505 U.S. 437 (1992), the Supreme Court recognized

the contradiction in arguing that a defendant may be incompetent while presuming

that he could intelligently waive his right to a determination of his capacity to stand

trial. The Court explained:

      The rule announced in Pate was driven by our concern that it is
      impossible to say whether a defendant whose competence is in doubt has
      made a knowing and intelligent waiver of his right to a competency
      hearing. Once a competency hearing is held, however, the defendant is
      entitled to the assistance of counsel, e.g., Estelle v. Smith, 451 U.S. 454,
      469–471 (1981), and psychiatric evidence is brought to bear on the
      question of the defendant's mental condition, see, e.g., Cal. Penal Code
      Ann. §§ 1369(a), 1370 (West 1982 and Supp.1992); see generally
      Brakel, Parry, & Weiner, The Mentally Disabled and the Law, at
      697–698. Although an impaired defendant might be limited in his ability
      to assist counsel in demonstrating incompetence, the defendant's inability
      to assist counsel can, in and of itself, constitute probative evidence of
      incompetence, and defense counsel will often have the best-informed
      view of the defendant's ability to participate in his defense. E.g., United
      States v. David, 511 F.2d 355, 360 (D.C. Cir. 1975); United States ex rel.
      Roth v. Zelker, 455 F.2d 1105, 1108 (2nd Cir.), cert. denied, 408 U.S.
      927 (1972).

Medina, 505 U.S. at 540.

      Thus, at a competency trial, the evidence of a defendant’s competency is

derived from sources other than the defendant--expert testimony, observations of

others, and video and audio recordings made at the time of the trial on the offense--

                                          13
evidence that can be adduced regardless of a defendant’s present competency.

             2.     A breakdown in the adversarial process occurs if a
                    defendant’s recollection of competency is credited.

      Respondent cites People v. Lightsey, 279 P.3d 1072 (Calif. 2012), in support

of his authority to consider present competency. [Respondent’s Br at 2]

      The Lightsey Court remanded the case for a retrospective competency

determination, if feasible, because the trial court erred in allowing Lightsey to

represent himself during a competency proceeding. Lightsey, 279 P.3d at 1091. the

Lightsey Court held that counsel should have been appointed because the Legislature

intended “that a criminal defendant be represented by counsel at a competency

hearing.” Lightsey, 279 P.3d at 1092.2

      In support of mandatory representation by counsel, the Lightsey Court observed

that “if, as transpired in this case, a criminal defendant whose mental competence is

in question is permitted self-representation and to maintain he or she is competent to

stand trial, a breakdown occurs in the process of meaningful adversarial testing central

to our system of justice.” Lightsey, 279 P.3d at 1095. A competency trial is required

when a defendant has apparently defective judgement. Id. “Whether the defendant

believed he was competent to stand trial is irrelevant for, if a defendant is incompetent



      2
           The Texas Legislature intended the same in enacting Article 46B.006.
Tex. Code Crim. Proc. art. 46B.006 (West 2009).

                                           14
to stand trial, his belief that he is able to do so is without import.” Id. (quoting Bundy

v. Dugger, 816 F.2d 564, 566, n.2 (11th Cir. 1987)). “And if a defendant were to

assert that he or she was incompetent, allowing such a defendant to attempt to prove

his or her own incompetence would be nonsensical.” Lightsey, 279 P.3d at 1096.

      It is likewise nonsensical and a breakdown in the adversarial process to require

a defendant to be presently competent for a retrospective competency trial in order to

recall his belief about his competency at the time of his trial.

             3.     A present competency trial is duplicitous of the
                    retrospective competency trial.

      Whether held at the time of the trial on the offense or retrospectively, the sole

issue in a competency jury trial is, “[W]hether the defendant is incompetent to stand

trial?” Tex. Code Crim. Proc. art. 46B.052(a).

      Article 46B.003 provides:

      (a)    A person is incompetent to stand trial if the person 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.

      (b)    A defendant is presumed competent to stand trial and shall be
             found competent to stand trial unless proved incompetent by a
             preponderance of the evidence.




                                           15
Tex. Code Crim. Proc. art. 46B.003 (West 20093).

      Chapter 46B does not explicitly define what it is that the defendant must have

“a reasonable degree of rational understanding.” But, when there is a “criminal

proceeding,” Article 46B.024 informs this phrase as:

      (1)   the capacity of the defendant during criminal proceedings to:

            (A)    rationally understand the charges against the defendant and
                   the potential consequences of the pending criminal
                   proceedings;

            (B)    disclose to counsel pertinent facts, events, and states of
                   mind;

            (C)    engage in a reasoned choice of legal strategies and options;

            (D)    understand the adversarial nature of criminal proceedings;

            (E)    exhibit appropriate courtroom behavior; and

            (F)    testify.

Tex. Code Crim. Proc. art. 46B.024(1) (West 2009).

      However, a retrospective competency trial is not a “criminal proceeding”--there

are no charges, no consequences (other than to become competent or to be civilly

committed), and no legal strategies or options. Further, a defendant must prove his

incompetency by a preponderance of the evidence, and thus a competency trial is not



      3
           Turner cut the throats of his wife and mother-in-law on or about
December 27, 2009. Turner v. State, 422 S.W.3d 676, 678 (Tex. Crim. App. 2013).

                                         16
“against” the defendant.

      Assuming, arguendo, that a defendant must have “a reasonable degree of

rational understanding” during a retrospective competency trial, what does he need to

have a rational understanding about? If the answer is his incompetency during the

capital murder trial, how would the defendant know whether he was incompetent or

competent? See Lightsey, 279 P.3d at 1095-96.

      Or perhaps, to be presently competent for a retrospective competency trial, a

defendant must have a rational understanding that if he was incompetent at trial, he

will have a new trial, but that a new trial cannot occur if he is again incompetent. In

other words, the defendant must have a rational understanding that if he remains

incompetent he may never be tried or punished.           But, this would mean that

competence could be used as a defense to prosecution, which it is not.

      What issue about present competency must a jury decide?4

      If as in Turner, a defendant is alleged by his attorneys to be incompetent

because he will not cooperate with their strategy to get him a life sentence and

competency boils down to whether the defendant’s trial strategy is as lucid as the

strategy of his attorneys, present competency might then be determined by whether

the defendant has a rational understanding of his attorneys’ defense versus his own.


      4
             In evaluating Turner’s current competency, Dr. Jennings employed the
factors in Article 46B.024. [App. M at 6]

                                          17
But, that is exactly what must be shown at a retrospective competency trial.

      Further, if a defendant must be presently competent, counsel will insist that his

client first waive the attorney-client privilege before the circumstances surrounding

the choice of defense strategy can be shown and post-conviction proceedings will be

stalled, a hostage to the defendant’s competency.5 A present competency trial is thus

duplicitous of a retrospective competency trial and an exercise in futility.

      No, a person does not need to be presently competent at a retrospective

competency trial.


      Issue Two:          If so, does the trial court have the authority to
                          require a jury to determine the issue of present
                          competency?

      State’s Answer: This issue is inapplicable because a defendant
                      need not be competent for a retrospective
                      competency trial.

      A.     Because a person need not be competent for a retrospective
             competency trial, the second issue is inapplicable.

      The State answered the first designated issue in the negative, therefore the

second issue is inapplicable.




      5
            Just as the trial attorney’s file is hostage to Turner’s competency in
Turner’s habeas case. In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013).

                                          18
      B.     A trial court’s jurisdiction on remand is limited to the mandate of
             this Court, which required the trial court to determine feasibility
             of a retrospective competency trial.

      Further, on remand, a trial court has only limited jurisdiction to effect the

mandate of this Court. State v. Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App.

2012), abrogated on other grounds Whitfield v. State, 430 S.W.3d 405 (Tex. Crim.

App. 2014). Like the mandate in Ex parte Watson, 660 S.W.2d 902, 906 (Tex. Crim.

App. 1980), the mandate in this case ordered the trial court, not a jury, to determine

the feasibility of a retrospective competency trial.

      Professors Dix and Schmolesky twice state in explaining “Retrospective

competency determinations,” that the issue of feasibility is for the trial judge:

      If the appellate court found only that the evidence before the trial court
      raised the issue of competency, the remand is to be for, first, the trial
      judge to determine whether evidence that would support a finding of
      incompetency exists. If the trial judge determine this was the case, the
      judge was, second, to conduct a jury trial on competency.

      ....

      In some cases, the appellate court can determine for itself that a fair
      retrospective inquiry into competency can (or cannot) be held. However,
      this is sometimes not the case, apparently because the record does not
      make clear how difficult the issue is likely to be and the “quality and
      quantity” of evidence that would be available if the trial court were to
      conduct such a retrospective inquiry. In this event, the remand is for the
      trial court to first determine whether a retrospective determination of
      competency is possible and only upon an affirmative finding to conduct
      that inquiry into competency. When this is done, the question of the
      feasibility of a retrospective hearing is for the court rather than the jury.


                                           19
George E. Dix & John M. Schmolesky, 43 Texas Practice Series: Criminal Practice

and Procedure § 31:81, “Retrospective competency determinations” (3d ed. Westlaw

2014) (footnote citations in the second paragraph omitted).

      In his brief, Respondent states, “This Court determined that a retrospective

competency trial is feasible and ordered that a jury determine Mr. Turner’s present

competency before proceeding with the retrospective competency trial.”

[Respondent’s Br at 1] However, the reporter’s record shows that the trial court

actually ceded the determination on feasibility to a jury, “if this present competency

jury finds him competent, then it’s--the finding of feasibility’s made. Then we’ll go

to retrospective.” [App. H at 17] Thus, a jury will decide whether a retrospective

competency trial is feasible, contrary to this Court’s mandate. The trial court has no

authority to empanel a jury to determine present competency.

      C.     Respondent asserts he has authority under the Texas Constitution
             to empanel a jury to determine present competency, but no law
             requires present competency for a retrospective competency trial.

      Respondent asserts he has the right under the Texas Constitution to order a jury

trial to determine the issue of present competency. [Respondent’s Brief at 3-4]

However, like granting a new trial “in the interest of justice,” a trial judge’s authority

to act is not “unbounded or unfettered” and the act must be “in accordance with the

law.” State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007). Here, as

shown in answer to the first designated issue, a person has no constitutional or

                                           20
statutory right to present competency for a retrospective competency trial and there

is no rational reason to empanel a jury to determine present competency for a

retrospective competency trial. The act of empaneling a jury to determine present

competency is not in accordance with the law.

      D.    Substantial evidence regarding competency, including audio-
            video recordings of jail visits during the course of the capital
            murder trial, are available, and a retrospective competency trial
            is feasible regardless of Turner’s present competency.

      In determining whether a retrospective competency trial is feasible, the trial

court should consider the following factors:

1.    The passage of time;

2.    The “quality and quantity” of evidence that would be available if the trial court
      were to conduct such a retrospective inquiry, including

      a.    the present recollection of expert witnesses who testified at the original
            hearing;

      b.    statements made by the defendant at trial,

      c.    the availability of contemporaneous medical and psychiatric evidence,

      d.     the availability of transcript or video record of the relevant proceedings,

      e.    the availability of witnesses, both expert and nonexpert, who could offer
            testimony regarding the defendant's mental status at the time of trial

3.    The ability of the judge and jury to observe the subject of their inquiry.




                                          21
See Brandon v. State, 599 S.W.2d 567, 573 (Tex. Crim. App.1979),6 vacated and

remanded on other grounds 453 U.S. 902 (1981) (citing Pate); Dix and Schmolesky,

43 Texas Practice Series § 31:81; Francis C. Amendola, et. al., 22A C.J.S. Criminal

Law § 791, Retrospective Hearings (March 2014). “No single factor is determinative,

and the issue should be decided on a case-by-case basis.” 22A C.J.S. § 791.

       Here, the passage of time is not a significant factor. Trial counsel are the

source of the opinion that Turner was incompetent to stand trial. Trial counsel, Pat

McCann and Tyrone Moncriffe, are available to testify to their observations and

interactions with Applicant.

       Dr. Connie Almeida, who attempted to examine Turner during jury selection,

is available to testify about her half hour encounter with Turner.

       Turner took the stand, and the transcriptions of his testimony and the many

interactions between Turner and the Court during the course of jury selection and the

trial are available.

       The records of the Fort Bend County Jail reflect Turner’s physical and mental

health during jury selection and the trial.

       Most importantly, unlike Pate, during the course of voir dire and the end of the


       6
             See also the cases collected by the court providing “ample authority that
the requirements of due process may be fully met as it concerns the appellant here if
he were not granted a trial to determine, after the fact, whether he was competent at
the time he was tried and convicted.” Brandon, 599 S.W.2d at 573.

                                          22
trial, jail visits by Turner’s family and a friend7 were video recorded.          The

retrospective competency jury will be able to observe the affect and demeanor of

Turner while interacting with persons he is comfortable with and trusts. In addition,

the State has audio recordings of over thirty telephone calls by Turner made during

the course of his capital murder trial.

      The quality and quantity of evidence showing Turner’s competence to stand

trial is good, substantial, and readily available. Turner need not be presently

competent for a retrospective competency trial.




      7
               Willie Bradford, who testified at trial and was a co-worker of Turner’s
at the Jester IV unit.

                                          23
                                      PRAYER

      The Relator respectfully requests that this Honorable Court find that a

defendant need not be presently competent for a retrospective competency trial and

to issue a writ of mandamus and/or a writ of prohibition directing Respondent to

withdraw its order for a jury trial on Turner’s present competency, to determine the

feasibility of a retrospective competency trial on factors other than Turner’s present

competency, to hold the retrospective competency trial if feasible, and to set a

deadline for the return of this case to this Court.

                                                Respectfully submitted,

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

                                                /s/ Fred M. Felcman
                                                Fred M. Felcman
                                                SBOT # 06881500
                                                First Assistant District Attorney

                                                /s/ Gail Kikawa McConnell
                                                Gail Kikawa McConnell
                                                SBOT # 11395400
                                                Assistant District Attorney
                                                301 Jackson Street, Room 101
                                                Richmond, Texas 77469
                                                (281) 341-4460 /(281) 238-3340 (fax)
                                                Gail.McConnell@fortbendcountytx.gov



                                           24
                CERTIFICATE OF COMPETENT EVIDENCE

      I hereby certify that I have reviewed the foregoing petition and every factual

statement is supported by competent evidence included in the appendix or record.


                                               /s/ Fred M. Felcman
                                               Fred M. Felcman


                       CERTIFICATE OF COMPLIANCE

      I hereby certify that the State’s brief on the issues designated by this Court, in

total through the prayer for relief contains 7,190 words as counted by WordPerfect 12,

which is less than the 15,000 word limit for a brief. Tex. R. App. 9.4(i)(2)(B).

                                               /s/ Gail Kikawa McConnell
                                               Gail Kikawa McConnell


                          CERTIFICATE OF SERVICE

      I hereby certify that a copy of the State's brief on the issues designated served
by electronic filing manager or by e-mail on August 10, 2015, on:

Hon. Brady G. Elliott, Respondent, <brady.elliott@fortbendcountytx.gov>

Robert Morrow, <Ramorrow15@gmail.com>, Attorney for Real Party in Interest

Lisa McMinn, State Prosecuting Attorney, <Lisa.McMinn@spa.state.tx.us>

                                               /s/ Gail Kikawa McConnell
                                               Gail Kikawa McConnell




                                          25
Appendix M
