                                                                                    WR-82,875-01
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 7/29/2015 2:15:03 PM
                                                                       Accepted 7/29/2015 2:39:11 PM
                                No. WR-82,875-01                                       ABEL ACOSTA
  July 30, 2015                                                                                CLERK
                                No. WR-82,875-02

                                       In the
                             Court of Criminal Appeals
                                     At Austin
                            
                              No. 10-DCR-054233
                             In the 268th District Court
                              Fort Bend County, Texas

                              

                          IN RE BRADY ELLIOT,
                    JUDGE 268TH DISTRICT COURT
                            
   TRIAL COURT’S RESPONSE TO THE COURT OF CRIMINAL APPEALS’
                    ORDER ISSUED JUNE 24, 2015


      Albert Turner was convicted of capital murder and sentenced to death on June

7, 2011. The issue of Mr. Turner’s competency was raised during his trial and on

direct appeal. On October 30, 2013, the Court of Criminal Appeals abated Mr.

Turner’s appeal and remanded the cause to the trial court to determine whether it is

feasible to conduct a retrospective competency trial. 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. In response, the State filed petitions for mandamus and prohibition seeking to

prevent this Court from holding an inquiry into Mr. Turner’s present competency.


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Before considering the State’s filings, the Court of Criminal Appeals has invited this

Court to brief the following issues for its consideration:

    Must a defendant be presently competent in order for a retrospective
competency trial to occur?
       A retrospective competency inquiry is a unique, judicially-created remedy for

determining a defendant’s competency at some point in the past. It is plausible that

one may be competent at the time the retrospective is ordered, but was incompetent

during some relevant period in the past. Although only persuasive authority, the

California Supreme Court has noted that, in assessing whether a retrospective

competency hearing is feasible, the trial court should consider (1) the passage of time,

(2) the availability of contemporaneous medical evidence, including medical records

and prior competency determinations, (3) any statements by the defendant in the trial

record, and (4) the availability of individuals and trial witnesses, both experts and non-

experts, who were in a position to interact with the defendant before and during trial,

as well as any other facts the court deems relevant. People v. Lightsey, 2012 WL 2685249 (Cal.

2012). This would necessarily include the defendant’s present competency, should the

court deem it relevant.

       In March 2015, this Court learned that Mr. Turner was engaging erratic

behavior, including refusing medical care and refusing meals. (Appendix A). As a

result, this Court has now ordered that a present competency exam be conducted.

Given that this is a capital case where the death penalty was imposed, this Court is


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especially concerned with Mr. Turner’s present competency to move forward and

wants to ensure that a complete record is made in the event there is future post-

conviction litigation.

       Additionally, Due Process and the Sixth Amendment provide defendants the

right to assist their counsel and participate in proceedings against them. See, e.g.,

Greene v. State, 264 S.W.3d 271, 273 (Tex. App.--San Antonio 2008, pet. ref’d). Thus, a

defendant’s present competency may be necessary to assist his counsel and medical

personnel regarding his thoughts and experiences in the past, and testify in the

retrospective competency trial.

       Because a retrospective competency trial is not a statutory remedy, it becomes

useful to look to other statutes for guidance on how to properly proceed. According

to Article 5, Section 8 of the Texas Constitution, a District Court’s jurisdiction

consists of exclusive, appellate, and original jurisdiction of all actions, proceedings,

and remedies, except in cases where exclusive, appellate, or original jurisdiction may

be conferred by the Texas Constitution or other law on some other court, tribunal, or

administrative body.

       Article 11 of the Texas Code of Criminal Procedure provides guidelines for

issuing writs of habeas corpus and discusses the trial court’s powers to order evidence

be presented and conduct hearings. See TEX. CRIM. PROC. CODE ANN. § art. 11.07

(West Supp. 2013) (“If the convicting court decides that there are controverted,


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previously unresolved facts which are material to the legality of the applicant’s

confinement, it shall enter an order within 20 days of the expiration of the time

allowed for the state to reply, designating the issues of fact to be resolved. To resolve

those issues the court may order affidavits, depositions, interrogatories, additional

forensic testing, and hearings, as well as using personal recollection.”).

       Because jurisdiction to consider competency is not delegated elsewhere, the

district court is the fact-finder when determining the competency of a defendant and

setting the groundwork for conducting an inquiry. And the trial court’s power to

order whatever evidence necessary to resolve the issue of past competency may be

analogized to the court’s power when considering a habeas challenge. This includes

an inquiry into the defendant’s present mental state.

       In accordance with this Court’s authority to order whatever evidence necessary

to resolve an issue properly before the Court, as well as the guarantees of Due Process

and the right to a fair trial, Mr. Turner must meet the minimum level of competency

before a retrospective competency hearing can commence. See Greene, 264 S.W.3d at

272 (“[a] retrospective competency inquiry would be meaningless if [the defendant]

does not possess at least some level of competency at the time the inquiry is

conducted.”).




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      If a defendant must be presently competent to conduct a retrospective
competency hearing, does the trial court have the authority to require a jury to
determine the issue of present competency?
      A trial court enjoys broad authority to resolve issues raised at the trial level

through any means it deems equitable. See e.g., TEX. CRIM. PROC. CODE ANN. art.

28.01 (West 2006). For example, in a hearing on a motion to suppress, a court may

“determine the merits of said motion on the motions themselves, or upon opposing

affidavits, or upon oral testimony, subject to the discretion of the court.” Id. at art.

28.01 § 1(6). And because the right to a trial by jury is favored under Texas law, this

Court has the authority to order that Mr. Turner’s present competency be resolved by

a jury. See TEX. CONST. ART. 1, § 15; TEX. CRIM. PROC. CODE ANN. § art. 1.12 (West

2005); Samudio v. State, 635 S.W.2d 183, 184 (Tex. App. 1982) aff’d, 648 S.W.2d 312

(Tex. Crim. App. 1983).

      Furthermore, if a defendant has the right for a jury to determine his

competency for trial, why would he not also have the right to demand a jury also

determine his competency to proceed with a retrospective inquiry? If there is a

question as to Mr. Turner’s competency, and a trial is ordered, article 46B.051 of the

Texas Code of Criminal Procedure requires this Court to allow a jury to make that

determination if it is requested by either party. This Court sees no reason to delineate

from the requirements of the Code, whether it be for a competency determination to

stand trial, or to determine competency to proceed with a retrospective hearing.



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      This Court has presided over this cause for over five years. The issue of Mr.

Turner’s competency has been raised several times, both before and during trial. At

this point in the proceedings, if requested by the parties, another detached fact-finder

must step in to definitively determine Mr. Turner’s present competency so that this

cause may move forward in accordance with due process guarantees.

                                               Respectfully submitted,

                                               /s/ Brady G. Elliot
                                               Brady G. Elliot
                                               268th District Court, Fort Bend County




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Appendix A Redacted
(Medical Records)
