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



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



         ON PETITION FOR WRITS OF MANDAMUS & PROHIBITION
                      IN CAUSE NO. 10-DCR-054233
                     IN THE 268 TH DISTRICT COURT
                          FORT BEND COUNTY

      H ERVEY, J., delivered the opinion of the Court in which K EASLER, A LCALA,
R ICHARDSON, K EEL, and W ALKER, JJ., joined. K ELLER, P.J., filed a dissenting
opinion in which Y EARY, J., joined. Y EARY, J., filed a dissenting opinion. N EWELL, J.
did not participate.

                                        OPINION

       We have before us the State’s petition for writs of mandamus and prohibition in a

capital murder direct appeal previously remanded to the trial court for a retrospective

competency hearing. In June 2011, a jury convicted Albert James Turner (Turner) of

capital murder for intentionally murdering more than one person during the same criminal

transaction, specifically, his wife and his mother-in-law. See T EX. P ENAL C ODE
                                                                 In re State of Texas ex rel. Healey–2

§ 19.03(a)(7)(A). Pursuant to the jury’s answers to the special issues set forth in Texas

Code of Criminal Procedure article 37.071, section 2(b) and 2(e), the trial judge sentenced

Turner to death. T EX. C ODE C RIM. P ROC. Art. 37.071, § 2(g).1 Direct appeal to this Court

was automatic. Art. 37.071, § 2(h).

       In the course of reviewing Turner’s twenty-four points of error on direct appeal,

this Court noted that, in fourteen of those points, Turner claimed that he was incompetent

to stand trial or that the trial court should have paused the trial to conduct a formal

competency hearing as his trial counsel repeatedly requested. See Turner v. State, 422

S.W.3d 676, 679 (Tex. Crim. App. 2013). After reviewing the events surrounding the

competency issue, the Court sustained Turner’s ninth point of error, abated the appeal,

and remanded the cause to the trial court. Id. at 696. On remand, we ordered the trial

court to “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.” Id. at 696-97. Secondly, “[s]hould the trial court deem a

retrospective competency trial to be feasible,” we ordered the court to “proceed to

conduct such a trial in accordance with Chapter 46B, Subchapter C, of the Code of

Criminal Procedure.” Id. We ordered that the record of the proceedings then be returned

to this Court for reinstatement of the appeal. Id. As of this date, this Court has not

received the record of the proceedings on remand.

       1
         Unless otherwise indicated, all future references to Articles refer to the Code of
Criminal Procedure.
                                                               In re State of Texas ex rel. Healey–3

       At a scheduling hearing upon remand of this case, the trial court agreed to appoint

experts to evaluate Turner’s present competency. The State then filed in this Court a

“Motion for Enforcement of the Trial Court’s Limited Jurisdiction on Remand” arguing

that a determination of Turner’s present competency was outside the scope of the trial

court’s limited jurisdiction on remand. Subsequently, in September 2014, the trial court

issued a written order in which it determined that a retrospective competency trial was

feasible and set a date for that trial. However, in February of 2015, the trial court held

another hearing and decided that the court must first hold a jury trial to determine whether

Turner was presently competent before holding a retrospective competency trial. The

judge scheduled the trial on Turner’s present competency for March of 2015.

       On February 13, 2015, the State filed in this Court a motion for leave to file a

petition for writs of mandamus and prohibition (cause numbers WR-82,875-01 and WR-

82,875-02) asking the Court to order the trial judge to: withdraw his order for a jury trial

on Turner’s present competency; determine the feasibility of a retrospective competency

trial on factors other than Turner’s present competency; hold a retrospective competency

trial if feasible; and set a deadline for the return of the case to this Court. The State

argued that the trial judge had failed to follow this Court’s directions set out in our 2013

opinion.

       In a March 2015 order, this Court stayed the scheduled jury trial on Turner’s

present competency and gave the trial court and Turner an opportunity to respond to the
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State’s mandamus petition. Turner’s counsel responded that the trial court had the

discretion to determine Turner’s present competency as part of the required “feasibility”

determination and, in any event, the State has an adequate remedy at law because it can

attack any alleged errors upon reinstatement of the appeal.

       On June 24, 2015, this Court filed and set the State’s petition for writs of

mandamus and prohibition and ordered the parties – and invited the trial judge – to brief

the following issues:

       (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?

The trial judge responded to this Court’s order, stating that the judge had “determined that

a retrospective competency trial is feasible and ordered that a jury determine [Turner’s]

present competency before proceeding with the retrospective competency trial.” The

judge further stated that, in March of 2015, he learned that Turner “was engaging [in]

erratic behavior, including refusing medical care and refusing meals.” Relying in part on

a San Antonio Court of Appeals case,2 the judge asserted that Turner must be presently

competent “to assist his counsel and medical personnel regarding his thoughts and

experiences in the past, and [to] testify in the retrospective competency trial.” Noting that

       2
          Greene v. State, 264 S.W.3d 271, 273 (Tex. App.—San Antonio 2008, pet. ref’d)
(“Given that Greene’s present incompetency is expected to continue indefinitely, we
conclude that a retrospective competency inquiry is not feasible and hold that Greene is
entitled to a new trial in the interest of justice.”).
                                                                 In re State of Texas ex rel. Healey–5

the right to a trial by jury is favored under Texas law, the trial judge further asserted that

he had the authority to order that the question of Turner’s present competency be resolved

by a jury.

       More recently, as three years had passed since this Court remanded the direct

appeal case to the trial court, the Court issued an order requiring the trial court to, within

ten days, respond in writing to two questions:

       (1) Is it presently feasible to conduct a retrospective competency trial, given
       the passage of time and the current availability of evidence? And,

       (2) If it is not feasible, then why is it not feasible?

       On October 28, 2016, the trial judge replied, “By Order dated September 25, 2014

this Court determined that a retrospective competency trial was feasible and set a date of

December 1, 2014 for such trial.” The trial judge further stated that, “[s]everal Motions

by the State of Texas . . . and [Turner] were filed resulting in a hearing held March 30,

2014 for a determination of [Turner’s] present competency and then based on such a

determination a decision would be made when a retrospective competency trial would

proceed.” The judge also said that he had ordered that Turner be examined by experts to

determine his present competency. The judge stated that, until the Court makes a decision

on the State’s mandamus action, the trial court “is unable to proceed further.”

       In In re McCann, this Court set out the requirements for mandamus and

prohibition relief:

       Mandamus relief may be granted if a relator shows that: (1) the act sought
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       to be compelled is purely ministerial, and (2) there is no adequate remedy at
       law. With respect to the requirement that the act sought is purely
       ministerial, the relator must have a “clear right to the relief sought,”
       meaning that the merits of the relief sought are “beyond dispute.” To show
       “a clear right to the relief sought,” a relator must show that the facts and
       circumstances of the case “dictate but one rational decision ‘under
       unequivocal, well-settled . . . and clearly controlling legal principles.’”
       However, we have also noted that, although an issue may be one of first
       impression, it does not necessarily follow that the law is not well-settled. It
       is a small step then to hold that, this Court may grant relief in a mandamus
       case based on a well-settled, but rarely litigated point of law.

422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (internal citations omitted).3 A ministerial

act, by its nature, does not involve a discretionary decision and relator is entitled to relief

only if the principle of law he relies upon is “positively commanded and so plainly

prescribed under the law as to be free from doubt.” In re Medina, 475 S.W.3d 291, 298

(Tex. Crim. App. 2015). A writ of prohibition must meet the same standards as a writ of

mandamus; the former is used to “prevent the commission of a future act whereas the

latter operates to undo or nullify an act already performed.” Id. at 297. A mandamus or

prohibition action is properly filed directly in this Court in a capital-murder case in which

the death penalty has been assessed. See McCann, 422 S.W.3d at 704.

       This Court has determined under the facts before us that the State has not met the

stringent requirements for mandamus and prohibition relief. See id.; see also Art.

44.01(c); Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012). Therefore, we

deny relief on the State’s petition for writs of mandamus and prohibition and we lift the

       3
        The In re McCann decision resulted from an earlier mandamus petition on an
unrelated issue in Turner’s capital murder case.
                                                    In re State of Texas ex rel. Healey–7

stay on the trial court proceedings in this case.

Delivered: March 8, 2017
Do Not Publish
