              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. AP-77,049



                            SCOTT LOUIS PANETTI, Appellant

                                                  v.

                                    THE STATE OF TEXAS

  ON DIRECT APPEAL FROM THE DENIAL OF DEFENDANT’S RENEWED
         MOTION TO STAY OR MODIFY THE EXECUTION DATE
        FILED IN CAUSE NO. 3310 IN THE 216TH DISTRICT COURT
                        GILLESPIE COUNTY

        A LCALA, J., filed a dissenting opinion in which P RICE, J OHNSON, and C OCHRAN,
JJ., joined.

                                    DISSENTING OPINION

       I respectfully dissent from this Court’s dismissal of the appeal filed by Scott Louis Panetti,

appellant, in which he seeks to challenge the trial court’s denial of his motion to stay the execution,

appoint counsel, and authorize funds for investigative and expert assistance pursuant to Code of

Criminal Procedure Article 46.05, the competency-to-be-executed statute. See TEX . CODE CRIM .

PROC. art. 46.05(a). The Court today concludes that it lacks jurisdiction over this appeal on the basis
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that the trial court’s denial of appellant’s motion does not constitute an appealable order and, in any

event, this Court lacks jurisdiction to review an order issued under Article 46.05 when a defendant

files his motion within twenty days of his scheduled execution date. I disagree with this overly

formalistic interpretation. Given the constitutional prohibition on executing a mentally incompetent

person that is at stake in this case, it is incumbent upon this Court to liberally construe both

appellant’s motion and the provisions in Article 46.05 so as to permit appellate review of the matters

raised in this appeal. Rather than dismiss the appeal, I would grant appellant’s motion for a stay of

execution and consider the merits of his challenge to the trial court’s order.

       I. Appellant’s Motion, Liberally Construed, Invokes This Court’s Jurisdiction

       Appellant filed a motion entitled, “Defendant’s Renewed Motion to Stay or Modify

Execution Date, Appoint Counsel, and Authorize Funds for Investigative and Expert Assistance to

Provide Meaningful Opportunity to Prepare Article 46.05 Motion.” The motion requests, among

other things, funds for the appointment of mental-health experts so that appellant may provide

factual support for his claim that he is incompetent to be executed. The motion was presented to the

trial court and was denied. The trial court set an execution date of December 3, 2014.

       Appellant’s motion requested funds so that he could make an initial showing of

incompetency as required by Article 46.05. See id. art. 46.05(c)-(f). Despite the lack of any statutory

provision that would provide funding for the appointment of mental-health experts prior to the filing

of such a motion, Article 46.05 requires an indigent defendant to make a threshold showing of

incompetency. See id. Pursuant to subsection (e), a defendant such as appellant who has previously

been determined to be competent to be executed is presumed to be competent, but that presumption

may be overcome. Article 46.05(e) states,
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       If a defendant is determined to have previously filed a motion under this article, and
       has previously been determined to be competent to be executed, the previous
       adjudication creates a presumption of competency and the defendant is not entitled
       to a hearing on the subsequent motion filed under this article, unless the defendant
       makes a prima facie showing of a substantial change in circumstances sufficient to
       raise a significant question as to the defendant’s competency to be executed at the
       time of filing the subsequent motion under this article.

Id. art. 46.05(e).1 In this case, the trial court denied appellant’s request for the funds that were key

to his ability to make a prima facie showing of a substantial change in circumstances. See id. The

essence of appellant’s complaint raised in his motion and on appeal is that, although he has made

a colorable showing of incompetence, without necessary funding to obtain the assistance of mental-

health experts, he could not show his incompetence under the standard set forth in Article 46.05(e).

Id.

       Although appellant’s motion’s title requesting a “Meaningful Opportunity to Prepare Article

46.05 Motion” appears to suggest that it is not itself an Article 46.05 motion to determine

competency, I conclude that, liberally construed, the substance of that motion adequately invokes

the jurisdiction of this Court. Describing what must be contained in a motion filed by a defendant

who seeks to establish that he is incompetent to be executed, Article 46.05 states,

       A motion filed under this article must identify the proceeding in which the defendant
       was convicted, give the date of the final judgment, set forth the fact that an execution

1
         Additionally, Article 46.05(f) provides for the appointment of mental-health experts only
after a defendant has made a substantial showing of incompetency. See TEX . CODE CRIM . PROC. art.
46.05(f). That provision states,

       If the trial court determines that the defendant has made a substantial showing of
       incompetency, the court shall order at least two mental health experts to examine the
       defendant using the standard described by Subsection (h) to determine whether the
       defendant is incompetent to be executed.

Id.
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       date has been set if the date has been set, and clearly set forth alleged facts in support
       of the assertion that the defendant is presently incompetent to be executed. The
       defendant shall attach affidavits, records, or other evidence supporting the
       defendant’s allegations or shall state why those items are not attached. The
       defendant shall identify any previous proceedings in which the defendant challenged
       the defendant’s competency in relation to the conviction and sentence in question,
       including any challenge to the defendant’s competency to be executed, competency
       to stand trial, or sanity at the time of the offense. The motion must be verified by the
       oath of some person on the defendant’s behalf.

See id. art. 46.05(c) (emphasis added). Appellant’s motion expressly states that appellant is

“presently incompetent to be executed.” It further explains that appellant cannot attach items in

support of a motion under Article 46.05 due to a lack of funds to obtain assistance from mental-

health experts whose opinions are required to make a substantial showing under the article.2 Because

appellant’s argument is intertwined with the substance of the relief sought by Article 46.05, this

Court may properly exercise its jurisdiction and review the trial court’s ruling on his motion. See

Staley v. State, 420 S.W.3d 785, 787 (Tex. Crim. App. 2013) (concluding that this Court had

jurisdiction to review merits of collateral involuntary-medication order that was “intertwined” with

trial court’s ruling that defendant was competent to be executed).

       The Court additionally suggests that it is not permitted to review the trial court’s order



2
       See TEX . CODE CRIM . PROC. art. 46.05(d)-(g). Article 46.05 provides that, upon receipt of
a motion,

       the trial court shall determine whether the defendant has raised a substantial doubt
       of the defendant’s competency to be executed on the basis of: (1) the motion, and any
       attached documents, and any responsive pleadings; and (2) if applicable, the
       presumption of competency under Subsection (e).

Id. art. 46.05(d) (emphasis added). The Article additionally places the burden of demonstrating
incompetency on a defendant by providing that, “[i]f the trial court does not determine that the
defendant has made a substantial showing of incompetency, the court shall deny the motion and may
set an execution date as otherwise provided by law.” Id. art. 46.05(g).
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denying appellant’s motion because appellant filed his motion in the trial court after the twentieth

day before the scheduled execution date. See TEX . CODE CRIM . PROC. art. 46.05(l-1) (barring this

Court’s review of “any finding of the defendant’s competency made by a trial court as a result of a

motion filed under this article if the motion is filed on or after the 20th day before the defendant’s

scheduled execution date”). The record in this case, however, indicates that appellant filed both an

original motion and a “renewed” motion in the trial court, with the original motion being filed prior

to the twenty-day deadline. Liberally construing appellant’s pleadings in this case, I would find that,

because appellant timely filed his original motion asserting incompetency and seeking appointment

of counsel and investigatory and expert funding, he substantially complied with the twenty-day rule,

and this Court may, therefore, properly review the merits of his complaint. See id.; see also Druery

v. State, 412 S.W.3d 523, 536 (Tex. Crim. App. 2013) (permitting review of both Article 46.05

competency motion and supplement to that motion, when only original motion was timely filed for

purposes of twenty-day rule).

            II. Constitution Prohibits Execution of Mentally Incompetent Person

       “A person who is incompetent to be executed may not be executed.” TEX . CODE CRIM . PROC.

art. 46.05(a). This language codifies the absolute constitutional prohibition against the execution

of a person who, as a result of his mental illness, does not understand the reasons for the penalty or

its implications. See Ford v. Wainwright, 477 U.S. 399, 417 (1986) (plurality op.). In Ford, the

Supreme Court also recognized that a defendant must be afforded an adequate opportunity to present

evidence relevant to the matter of his competency to be executed. It stated,

       [C]onsistent with the heightened concern for fairness and accuracy that has
       characterized our review of the process requisite to the taking of a human life, we
       believe that any procedure that precludes the prisoner or his counsel from presenting
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        material relevant to his sanity or bars consideration of that material by the factfinder
        is necessarily inadequate.

Id. at 414. In light of these principles, this Court should liberally construe the terms of Article 46.05

and appellant’s motion so as to give effect to both the substantive and procedural protections that

are implicated in this case, including a determination as to whether appellant should be afforded the

opportunity to factually develop his claim of incompetency through appointment of counsel and

mental-health experts. See Ex parte Jones, 440 S.W.3d 628, 633 (Tex. Crim. App. 2014) (explaining

that this Court “liberally construes” statutes in favor of constitutionality).            Appellant is

constitutionally entitled to both the substantive protection against the execution of a mentally

incompetent person, as well as to the procedural protections that guarantee him a full and fair

opportunity to litigate the matter of his competency. See Ford, 477 U.S. at 413-14. Instead, by

declining to construe appellant’s motion as a pleading to determine his competency under Article

46.05, this Court, at best, deprives appellant of a fair opportunity to litigate his claims, thereby

violating the constitutionally required procedural protections recognized in Ford. At worst, this

Court’s decision will result in the irreversible and constitutionally impermissible execution of a

mentally incompetent person.

        It is this Court’s obligation to uphold the guarantees of the federal Constitution and to

interpret Texas’s statutory competency-to-be-executed scheme in such a way as to comply with those

guarantees. I would accordingly grant appellant’s motion to stay the execution and review his

challenge to the trial court’s order on the merits. Because the Court today elevates form over

substance and concludes that it lacks jurisdiction to review appellant’s challenge to the trial court’s

order denying his motion for stay of execution, appointment of counsel, and request for investigatory
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funding, I respectfully dissent.



Filed: November 25, 2014

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