                                                                        WR-82,875-01,02
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                           Transmitted 4/17/2015 9:52:07 AM
                                                            Accepted 4/17/2015 11:17:39 AM
                                                                               ABEL ACOSTA
                                                                                       CLERK

                  NO. WR-82,875-01 and WR-82,875-02              RECEIVED
                                                          COURT OF CRIMINAL APPEALS
                                                                 4/17/2015
                                                            ABEL ACOSTA, CLERK
          IN THE TEXAS COURT OF CRIMINAL APPEALS




In re STATE OF TEXAS ex rel. JOHN F. HEALEY, JR., District Attorney,
                  268TH JUDICIAL DISTRICT, Relator



   ON MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF
MANDAMUS AND/OR PROHIBITION FROM CAUSE NO. 10-DCR-054233
     IN THE 268TH DISTRICT COURT, FORT BEND COUNTY


  Real Party in Interest’s Response to Relator’s Motion for Leave to File
           Petition for Writs of Mandamus and/or Prohibition

                          *Death Penalty Case*


      ROBERT A. MORROW                 AMY MARTIN
      State Bar No. 14542600           State Bar No. 24041402
      24 Waterway Ave., Suite 660      202 Travis St., Suite 300
      The Woodlands, Texas 77380       Houston, Texas 77002
      Telephone: 281-379-6901          Telephone: 713-320-3525
      ramorrow15@gmail.com             amymartinlaw@gmail.com



                     Attorneys for Albert James Turner
                 IDENTITY OF PARTIES AND COUNSEL

      The parties identified by the Relator are correct and does not require

supplementation. Tex. R. App. P. 52.4(a).




                           TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ______________________________ 2

INDEX OF AUTHORITIES __________________________________________ 3

I. INTRODUCTION _______________________________________________ 5

II. ARGUMENT ___________________________________________________ 7

  Respondent’s act is not purely ministerial ______________________________ 7

  Relator has an adequate remedy at law _______________________________ 11

 Trial Counsel is not a liar __________________________________________ 13

III. CONCLUSION ________________________________________________ 16

CERTIFICATION OF COMPETENT EVIDENCE _______________________ 18

CERTIFICATE OF COMPLIANCE _________________________________ 18

CERTIFICATE OF SERVICE _______________________________________ 19




                                       2
                                    INDEX OF AUTHORITIES


CASES

Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981) ...................................14
Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) .............................8
Brandon v. State, 599 S.W.2d 567, 573 (Tex. Crim. App. 1979) cert. granted,
  judgment vacated on other grounds, 453 U.S. 902 (1981) ....................................7
Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979) .........................10
Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008) ..........................................6
Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App. 1980) ...............................10
Gomez v. State, 704 S.W.2d 770, 773 (Tex. Crim. App. 1985) ..............................15
Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 648-
  49 (Tex. Crim. App. 2005) ...................................................................................12
Guy v. State, 160 S.W.3d 606, 617 (Tex. App. 2005) .............................................16
In re State ex re. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013) .............6
Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990) ........................ 14, 15
Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) .............................12
Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987 ................................ 12
State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) ......6, 11
State ex rel. Wade v. Mays, 689 S.W.2d 893, 900 (Tex. Crim. App. 1985) ..............6
State ex rel. Young v. Sixth Judicial Dist. Court of Appeals At Texarkana, 236
  S.W.3d 207, 210 (Tex. Crim. App. 2007) ..............................................................8
Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424
  (Tex.Crim.App.1981). ............................................................................................8
Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013) ................. passim



                                                        3
RULES & STATUTES
Texas Rule of Appellate Procedure 52.4(a) ...............................................................2
Texas Code of Criminal Procedure A r t i c l e 44.01(c) ....................................11




                                                    4
                      NO. WR-82,875-01 and WR-82,875-02


             IN THE TEXAS COURT OF CRIMINAL APPEALS




 In re STATE OF TEXAS ex rel. JOHN F. HEALEY, JR., District Attorney,
                      268TH JUDICIAL DISTRICT, Relator



  REAL PARTY IN INTEREST’S RESPONSE TO REALTOR’S MOTION
              FOR LEAVE TO FILE PETITION FOR
         WRITS OF MANDAMUS AND/OR PROHIBITION




TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:


      Now comes Albert James Turner, the real party in interest, by and through his

undersigned counsel, and files this Response to the State’s Motion for Leave to File

Petition for Writs of Mandamus and/or Prohibition, and requests that this Court deny

Relator leave to file and lift the stay of Mr. Turner’s current competency trial.


                                   I. INTRODUCTION

      Relator argues that this Court should grant leave to file because this Court has

prohibited Respondent from considering Mr. Turner’s present competency when

evaluating feasibility for a retrospective competency trial and prohibited him from
                                          5
empaneling a jury for any reason other than retrospective competency. Regardless

of arguments about jurisdiction, the merits of the underlying cause, and the propriety

of re-considering this Court’s decision on direct appeal, the issue here is Relator’s

inability to meet the stringent and well-established requirements for this Court to

grant leave to file a petition for a writ of mandamus1.

       Mandamus is a drastic remedy, only to be used in extraordinary situations

when (1) the act sought to be compelled is ministerial and (2) the party seeking relief

shows that there is no adequate remedy at law. In re State ex re. Weeks, 391 S.W.3d

117 (Tex. Crim. App. 2013); State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex.

Crim. App. 1994).

       “[A]n extraordinary writ will not issue when it is necessary to try and decide

conflicting claims or collateral questions which require legal controversy for their

settlement.” State ex rel. Wade v. Mays, 689 S.W.2d 893, 900 (Tex. Crim. App.

1985). Relator addresses several collateral questions in its Petition, illustrating that

Mandamus in not appropriate.




1
 The same requirements apply to writs of prohibition. See Ex parte Alba, 256 S.W.3d 682 (Tex.
Crim. App. 2008).
                                              6
                                      II. ARGUMENT

           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.

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


                 RESPONDENT’S ACTION IS NOT PURELY MINISTERIAL


What to do, not how to do it

      Relator is asking this Court to force Respondent to ignore the evidence,

research, and arguments that he has reviewed and evaluated and “to determine the

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

competency.” See Relator’s Petition, p. 23. Relator does not state what “factors” it

believes should be considered, leaving it to Respondent to properly exercise his

discretion.

      A feasibility determination is required to overcome the acknowledged and

evident problems with retrospective competency trials. Brandon v. State, 599

S.W.2d 567, 573 (Tex.Crim.App.1979) (citing Dusky v. United States, 362 U.S. 402,

(1960)).      However, there is nothing ministerial about conducting a feasibility

determination. Respondent must identify and consider all “pertinent factors” to

reach a conclusion regarding the Constitutionality of a retrospective competency

trial based upon the unique facts in Mr. Turner’s case. This situation is analogous to
                                           7
a trial court’s ministerial duty to rule on a proper motion, but there is not a ministerial

duty to rule a certain way. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals

at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).

       Relator must show that it “has a clear right to the relief sought-that is to say,

when the facts and circumstances dictate but one rational decision under

unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law

sources), and clearly controlling legal principles.” Bowen v. Carnes, 343 S.W.3d

805, 810 (Tex. Crim. App. 2011)(emphasis in original).

       This Court’s directive to Respondent was clear: determine if a retrospective

competency trial is presently feasible.         This Court explicitly instructed the

Respondent on what he must do when making that determination: take into account

(1) how much time has passed, (2) what evidence is available, and (3) “any other

pertinent considerations.” The law does not prohibit Respondent’s actions—it

authorizes it.     The opinion requires Respondent to account for “pertinent

considerations,” but does not name or describe them further. Respondent must

necessarily exercise discretion to follow this Court’s Order.

       An act is ministerial “when the law clearly spells out the duty to be performed

... with such certainty that nothing is left to the exercise of discretion or judgment.”

Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981).

       There is no checklist of factors that a trial court must consider for a feasibility

                                            8
determination. Relator is unable to provide specifics regarding particular factors to

be considered. Relator cannot point to any authority that spells out Respondent’s

duty when determining feasibility other than the requirements in this Court’s

opinion.

      The only limitation this Court placed upon Respondent was that the

considerations must be “pertinent.” Respondent has discretion to identify and

evaluate pertinent considerations in this case. Relator never asserts that identifying

“pertinent considerations” is ministerial.


No jury was ever called to determine feasibility

      Exercising his discretion, after reviewing all of the evidence and listening to

the arguments of counsel, Respondent identified current competency as a “pertinent

consideration.”

      Further exercising his discretion, Respondent decided that resolution of the

issue of current competency would be best accomplished with assistance from a jury.

Current competency is just one “pertinent consideration” Respondent identified. For

months, Respondent has reviewed briefing by counsel, reports of unsuccessful

psychological evaluations, exhibits submitted by the parties, and other voluminous

amounts of information in order to make a sound decision regarding the feasibility

of a retrospective competency trial in this case.

      Respondent has never taken any action to empanel a jury, or expressed any
                                             9
opinion that a jury would be proper, for the purpose of determining feasibility.

      Relator argues that Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App.

1980) is controlling; in fact, it is inapplicable. Watson was given a pre-trial

competency trial in which a jury found him “sane to enter a plea.” This Court found

error in that proceeding and remanded the case for a feasibility determination based

on the facts of that case. On appeal from the retrospective competency trial, despite

overwhelming evidence to the contrary, Watson argued that a feasibility

determination had not been made, and if it had, it should have been made by a jury.

Current competency was never an issue in Watson. And, here, Respondent has never

suggested that a jury should determine feasibility.

      Relator points out that Respondent does not believe Mr. Turner is incompetent

and that opinion is “plainly spread in the record.” See Relator’s Petition, p. 18. It

is to Respondent’s credit that he seeks a jury’s perspective.


Case-by-case basis

      Determining the feasibility of a retrospective competency trial is done on a

case-by-case basis; it is fact specific. Caballero v. State, 587 S.W.2d 741, 743 (Tex.

Crim. App. 1979). A retrospective determination of competency may be made within

the limits of due process, depending on the facts of the particular case. Id. If the

application of the law to the facts will vary in every instance, the act is not

ministerial.
                                          10
                  RELATOR HAS AN ADEQUATE REMEDY AT LAW

      Article 44.01(c) of the Texas Code of Criminal Procedure provides Relator

with an adequate remedy: “The state is entitled to appeal a ruling on a question of

law if the defendant is convicted in the case and appeals the judgment.”

      This is not a pre-trial competency trial. This is not a competency trial that is

being held during trial. This is not a post-conviction pre-appeal competency trial.

Mr. Turner has been convicted and has appealed the judgment. This Court

specifically instructed Respondent to forward the record of these proceedings,

regardless of the outcome, so that the appeal can be reinstated.

      Relator’s impatience is not a proper basis to ignore the requirements for a Writ

of Mandamus. Mandamus is not meant to provide additional appellate avenues. It

is only to be used “to correct judicial action that is clearly contrary to well-settled

law, whether that law is derived from a statute, rule, or opinion of a court.” State ex

rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (emphasis in

original). In this case, Relator has not cited to any well-settled law from any source

that is clearly contrary Respondent’s actions.


Relator agrees

      Relator agrees that this Court’s instruction “seems to give Relator an adequate

remedy.” See Relator’s Petition, p. 8. And Realtor describes the remedy available

to it under Article 44.01(c). However, Relator believes that utilizing that remedy
                                          11
would “be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or

ineffective as to be deemed inadequate.” Smith v. Flack, 728 S.W.2d 784, 792

(Tex. Crim. App. 1987). Relator lists many potential witnesses, exhibits, and other

issues related to the case generally that appear completely irrelevant to a current

competency trial.

         The inconvenience of calling witnesses and transcribing many hours of jail

calls is not sufficiently burdensome enough to ignore the adequate remedy at law

that Relator agrees is available2.

         This Court has jurisdiction and can review any issue in this case whether it is

raised by a party or not. Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App.

2012).       Relator will have an opportunity to attack any alleged errors upon

reinstatement.



2
    This Court has provided examples of exigent circumstances overcoming a future remedy:

         When, for instance, a trial court erroneously removed appointed counsel before
         trial, we found that the defendant had no adequate remedy, for mandamus purposes,
         despite the availability of appeal sometime after trial. Using “the appellate process
         in this situation to correct this particular ill would be too burdensome and would
         only aggravate the harm and most likely would result in a new trial compelling
         relator to again endure a trip through the system.” In the pretrial habeas corpus
         context, we have found that appeal after trial was not an adequate remedy for certain
         double jeopardy claims because protection of the constitutional right of double
         jeopardy requires review before exposure to jeopardy occurs.

Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim.
App. 2005) (citations omitted) (quoting Smith v. Flack, 728 S.W.2d 784, 792
(Tex.Crim.App.1987)).

                                                  12
      Relator has failed to show that (1) Respondent’s act is purely ministerial and

(2) that it has no adequate remedy at law. Mandamus relief is not proper.


                           TRIAL COUNSEL IS NOT A LIAR


Improper forum

      Relator argues that this Court should reconsider its decision to remand this

case. Although it is understandable that Relator would seek this relief, it is improper

to do so here. In a Mandamus proceeding the only issue is Relator’s inability to

show that Respondent’s actions are purely ministerial and that it does not have an

adequate remedy at law. A blatantly irrelevant argument confuses the issues and

wastes the Court and the parties’ time.


“uninvited and unsubstantiated”

      In its attempt to re-litigate finalized issues, Relator personally and

professionally attacks Mr. Turner’s trial counsel Pat McCann:

      Turner’s attorney, Pat McCann is well known to this Court, the trial court,
      and the public as a zealous attorney who has kept his clients alive on
      death row for many years through his litigious efforts. The trial court
      observed counsel’s interactions with Turner and determined that Turner
      did not like his counsel, not that Turner was incompetent, and the trial
      court could easily have seen through trial counsel’s strategy to save Mr.
      Turner’s life by having him found incompetent in concert with Dr.
      Axelrad’s report. See, Commonwealth v. Blakeney, No. 653 CAP, 2014
      WL 7392249,*29 (Pa. Dec. 29, 2014) (Castille, C.J., concurring)
      (“As I explained in Commonwealth v. Bomar, 104 A.3d 1179 (Pa.
      2014), retrospective competency claims are particularly ripe for abuse
      by anti-death penalty advocacy groups like the [Federal Community
                                          13
      Defender’s Office], like-minded experts in their effective employ,
      and capital defendants themselves, who obviously have nothing to lose
      by abetting a fraudulent claim”).

      See Relator’s Petition (footnotes omitted), p. 20

      Relator’s argument demonstrates contempt for trial counsel and the legal

proceedings in this case. Unashamedly, Relator disparages Mr. McCann as an anti-

death penalty activist who will do anything, including gaming the legal system and

strategize to have a competent client found incompetent “in concert with Dr.

Axelrad’s report.”

      Texas courts have a history of preserving the integrity of the legal profession

by explicitly condemning and often reversing convictions based upon comments of

the type that Relator makes in its Petition. This Court has reversed and remanded

when a prosecutor commented that defense counsel “represents the criminal. His

duty is to see that his client gets off even if it means putting on witnesses who are

lying.” Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981).

      Mr. McCann has not represented Mr. Turner since the conviction and death

sentence. Relator is not responding to any legal argument that has been put forth in

this proceeding. When made in closing arguments, these comments are the type of

“uninvited and unsubstantiated accusation of improper conduct directed at a

defendant's attorney” for which this Court has a “special concern.” Orona v. State,

791 S.W.2d 125, 128 (Tex. Crim. App. 1990).

                                         14
         In Gomez v. State, this Court described an improper argument by a

prosecutor:

       In the instant case, the State, in its second improper argument, referred
       to appellant's attorney by name, made a specific uninvited and
       unsubstantiated accusation, and linked that accusation to the evidence
       raised in the case. Further, appellant objected, but the trial court
       overruled the objection. Under these circumstances, we do not believe
       that this second argument was harmless.

Gomez v. State, 704 S.W.2d 770, 773 (Tex. Crim. App. 1985).

       Here, Relator names Mr. McCann specifically and intimates that his

representation of clients is for publicity and in pursuit of a social cause. This is the

equivalent of a closing argument in which a prosecutor says that defense attorneys

“know how to get people off the charges they are charged with.” Orona v. State,

791 S.W.2d 125, 127-28 (Tex. Crim. App. 1990).

       Relator accuses Mr. McCann of fraudulently claiming that a client was

incompetent and by swearing to facts supporting that claim in an affidavit.3 This

accusation is directly followed by a comment about activists, hired experts, and

death row inmates that make fraudulent retrospective competency claims4.




3
  Relator suggests that Respondent “could easily have seen through trial counsel’s strategy.” If
this is true, Relator is suggesting that Respondent allowed Mr. McCann to perpetrate the fraud.
4
  Given Relator’s attempt at parallel argument, it appears that Dr. Axelrad is being equated to one
of the “like-minded experts in their effective employ” that also abuse the system. Dr. Axelrad was
never the defense’s expert at trial.
                                                 15
      Relator’s character assassination of trial counsel is an attempt to somehow

strengthen its legal position with an argument that “refers to defense counsel

personally . . . and explicitly impugns defense counsel's character. Guy v. State, 160

S.W.3d 606, 617 (Tex. App. 2005).

      These cases, for obvious reasons, deal with jury argument. However, attacks

in public written pleadings filed with this Court are at least, if not more, offensive.

In this case, Relator is not in front of an audience subject to being prejudiced and

inflamed like a jury may be. Instead, this Court is in a position to thoughtfully

consider Relator’s tactic when evaluating the credibility of its pleadings and to

address Relator’s actions as it sees fit.


                                  III.      CONCLUSION

      This Court was very straightforward when it instructed Respondent to

determine present feasibility of a retrospective competency trial. The instructions

included a mandate of what he must consider. This Court did not place any

limitations on Respondent’s required “case-by-case” evaluation. It is impossible to

consider this feasibility act to be ministerial. The facts and procedural posture of

this case are unique and Relator does not have a “clear right” to a particularized

process with specifically chosen factors.         And, Relator has a straightforward

adequate remedy at law under the Code of Criminal Procedure.


                                             16
      WHEREFORE, PREMISES CONSIDERED, the real party in interest

respectfully requests that this Honorable Court deny Relator’s Motion for Leave to

File Petition for Writs of Mandamus and/or Prohibition and lift the stay of his current

competency trial.

                                        Respectfully submitted,


                                        /s/ Robert A. Morrow
                                        ____________________________
                                        ROBERT A. MORROW
                                         MorrowBar No. 14542600
                                        State
                                        24 Waterway Ave., Suite 660
                                        The Woodlands, Texas 77380
                                        Telephone: (281) 379-6901
                                        ramorrow15@gmail.com


                                        /s/ Amy Martin
                                        _____________________________
                                        AMY MARTIN
                                        State Bar No. 24041402
                                        202 Travis St., Suite 300
                                        Houston, Texas 77002
                                        Telephone: (713)320-3525
                                        amymartinlaw@gmail.com




                                          17
                 CERTIFICATE OF COMPETENT EVIDENCE

       I certify that I have reviewed the petition and concluded that every factual
statement in the petition is supported by competent evidence included in the
appendix or record.


                                           /s/ Robert A. Morrow
                                           ____________________________
                                           ROBERT A. MORROW
                                            Morrow


                       CERTIFICATE OF COMPLIANCE


       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that
this petition contains 3,248 words i n i t s e n t i r e t y . This is a computer-
generated document created in Microsoft Word using a conventional l4-point
typeface for all text, e x c e p t f o r f o o t n o t e s ,   which a r e i n 1 2 -point
typeface.         In m a k i n g t h i s certificate of compliance, I am relying on the
word count of the computer program used to prepare this document.


                                           /s/ Robert A. Morrow
                                           ____________________________
                                           Robert A. Morrow
                                            Morrow




                                             18
                         CERTIFICATE OF SERVICE


      This is to certify that a true and correct copy of the above Response to the
State’s Motion for Leave to File Petition for Writs of Mandamus and/or Prohibition
was delivered electronically on April 17, 2015 to:
1. Relator

The State of Texas

Represented by:

      John F. Healy, Jr., Fort Bend County District Attorney

      Fred Felcman, Assistant District Attorney
      Fred.Felcman@fortbendcountytx.gov
      State Bar No. 06881500

      Gail Kikawa McConnell, Assistant District Attorney
      Gail.McConnell@fortbendcountytx.gov
      State Bar No. 11395400
      301 Jackson St.
      Richmond, Texas 77469
      Telephone: 281-341-4460
      Fax: 281-341-4440


2. Respondent

      The Honorable Brady Elliott
      Trial Court Judge
      368th Judicial District Court of Fort Bend County, Texas
      1422 Eugene Heimann Circle
      Richmond, Texas 77469

                                       /s/ Robert A. Morrow
                                       ____________________________
                                       ROBERT A. MORROW
                                       Morrow
                                        19
