                                                                                  WR-82,875-01,02
                                                                      COURT OF CRIMINAL APPEALS
                                                                                       AUSTIN, TEXAS
                                                                    Transmitted 2/13/2015 1:36:43 PM
                                                                      Accepted 2/13/2015 3:44:14 PM
                                                                                        ABEL ACOSTA
                             NO. __________________                                             CLERK

               IN THE TEXAS COURT OF CRIMINAL APPEALS                 RECEIVED
                                                               COURT OF CRIMINAL APPEALS
                                                                      2/13/2015
                RELATING TO CAUSE N0.              10-DCR-054233 ABEL ACOSTA, CLERK
          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 MOTION FOR LEAVE TO FILE PETITION FOR
           WRITS OF MANDAMUS AND/OR PROHIBITION,
       AND IF GRANTED, MOTION FOR STAY OF PROCEEDINGS


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

      COMES NOW THE STATE OF TEXAS, and in accordance with Rules 10.1(a)

and 72.1 of the Texas Rules of Appellate Procedures, files this motion for leave to file

an original petition for writs of mandamus and/or prohibition. In support thereof

shows:

1.    This is a death penalty case.

2.    On direct appeal, this Court abated the appeal and remanded the case to

      Respondent, Honorable Brady G. Elliott, Judge Presiding, 268th District Court,

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     Fort Bend County, Texas, to determine whether a retrospective competency

     trial is feasible, and if so, to hold the trial. Turner v. State, 422 S.W.3d 676,

     696-97 (Tex. Crim. App. Oct. 30, 2013).

3.   This Court’s mandate remands Turner’s case to Respondent to determine

     whether a retrospective competency trial is feasible, not to a jury.

4.   This Court’s mandate does not order Respondent to determine Turner’s present

     competency before finding that a retrospective competency trial is feasible.

5.   On February 3, 2015, Respondent ordered a jury trial on the present

     competency of Real Party in Interest, Albert James Turner. Contrary to the

     mandate of this Court, the verdict of the jury will determine whether a

     retrospective competency trial is feasible.

6.   Alternatively, Respondent has no jurisdiction or authority to order a jury trial

     on the present competency of Turner and Relator has no legal remedy at law.

7.   Relator seeks a writ of mandamus and/or prohibition to order Respondent, in

     accordance with law and the mandate of this Court, to determine feasibility

     without consideration for whether Turner is presently competent.

8.   As shown in the petition and exhibits thereto, Respondent has ordered

     psychiatric experts to evaluate Turner for present competency.

9.   If this motion for leave to file is granted, Relator further requests this Court to

     stay the proceedings.

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      WHEREFORE, PREMISES CONSIDERED, the Relator respectfully requests

that this Honorable Court grant leave to file its petition for 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, and if feasible,

to hold the retrospective competency trial. Relator further requests that if leave to file

is granted, that this Court stay the proceedings in the trial 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




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                          CERTIFICATE OF SERVICE

       I hereby certify that a copy of the State's motion for leave to file petition for
writs of mandamus and prohibition was served by electronic mail on February 13,
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




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