                                                                              WR-80,559-02
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                            Transmitted 1/21/2015 12:36:30 PM
                                                               Accepted 1/21/2015 4:42:01 PM
                                                                                 ABEL ACOSTA
                         NO. ___________________                                         CLERK

                                                                   RECEIVED
                                                            COURT OF CRIMINAL APPEALS
                                                                   1/21/2015
                                                              ABEL ACOSTA, CLERK
           IN THE TEXAS COURT OF CRIMINAL APPEALS




                    IN RE ALBERT JAMES TURNER



 Original Proceeding from the 368th District Court of Fort Bend County, Texas
                The Honorable Brady Elliott, Presiding Judge
                   Trial Court Cause No. 10-DCR-054233



PETITION FOR WRIT OF MANDAMUS AND WRIT OF 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




                    ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 52.3(a), the Relator identifies the following parties and

the names and address of counsel:

1. Relator

      Albert James Turner
Represented by:


      Robert A. Morrow
      State Bar No. 14542600
      24 Waterway Ave., Suite 660
      Woodlands, Texas 77380
      Telephone: 281-379-6901
      ramorrow15@gmail.com

     Amy Martin
     State Bar No. 24041402
     202 Travis St., Suite 300
     Houston, Texas 77002
     Telephone: 713-320-3525
     amymartinlaw@gmail.com


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
      Telephone: 281-341-8610
      Fax: 281-341-8614
3. Real Party in Interest


      The State of Texas

Represented by:

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

      Fred Felcman Assistant Criminal District Attorney
      1422 Eugene Heimann Circle
      Richmond, Texas 77469
      Telephone: 281-341-4460
      Fax: 281-341-4440
      Fred.Felcman@fortbendcountytx.gov




                                       3
                        TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL _____________________________ 2

TABLE OF AUTHORITIES _________________________________________ 5

I. INTRODUCTION _______________________________________________ 6

II. STATEMENT OF THE CASE _____________________________________ 6

III. STATEMENT OF JURISDICTION _________________________________ 7

IV. ISSUES PRESENTED ___________________________________________ 7

 1. THE TRIAL COURT ABUSED ITS DISCRETION BY MAKING A FEASIBILITY
 DETERMINATION OF RELATOR’S RETROSPECTIVE COMPETENCY TRIAL WITHOUT

 DUE PROCESS ____________________________________________________ 7

 2. THE TRIAL COURT ABUSED ITS DISCRETION BY PROCEEDING TO RELATOR’S
 RETROSPECTIVE COMPETENCY TRIAL WITHOUT THE FEASIBILITY DETERMINATION

 THAT DUE PROCESS REQUIRES   _______________________________________ 7

V. STATEMENT OF FACTS ________________________________________ 8

VI. ARGUMENT _________________________________________________ 13

VII. CONCLUSION AND PRAYER __________________________________ 16

CERTIFICATION ________________________________________________ 17

CERTIFICATE OF COMPLIANCE _________________________________ 17

APPENDIX______________________________________________________ 18

CERTIFICATE OF SERVICE _______________________________________ 19




                                   4
                                       TABLE OF AUTHORITIES


CASES

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) ....................................8
Buntion v. Harmon, 827 S.W.2d 945 (Tex. Crim. App. 1982) ...............................14
Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979) .........................13
Drope v. Missouri, 420 U.S. 162, 183 (1975) ...........................................................8
Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008) ........................................13
Ex rel. Hilbig v. McDonald, 877 S.W.2d at 470 (Tex. Crim. App. 1982)...............14
Greene v. State, 264 S.W.3d 271 (Tex. App.—San Antonio 2008) ..........................8
Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 648-
   49 (Tex. Crim. App. 2005) ...................................................................................15
In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) ................................14
In re Reece, 341 S.W.3d 360, 375 (Tex. 2011) .........................................................7
In re State ex re. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013) ...........13
Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003). .......................7
Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987 .................................15
Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013), reh'g denied
   (Apr. 2, 2014)..........................................................................................................6
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) ............................................14
RULES
Tex. R. App. P. 52.3(a) ..............................................................................................2
Texas Rule of Appellate Procedure 9.4(i)(3) .......................................................17
CONSTITUTIONAL PROVISIONS
Tex. Const. Art. V, § 5 ...............................................................................................7

                                                             5
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:


      Now comes Albert James Turner, Relator, by and through his undersigned

counsel, and files this Petition for Writ of Mandamus and Petition for Writ of

Prohibition, and would respectfully show the Court as follows:

                               I. INTRODUCTION

      Relator requests that this Court enforce its opinion and direct Respondent to

make the determination of feasibility that Due Process requires, prior to conducting

a retrospective competency trial.        This Court has consistently held that a

retrospective competency trial is only constitutionally permissible if it is found to be

feasible, and Mr. Turner’s case is no different. Turner v. State, 422 S.W.3d 676,

696-97 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014).

                        II. STATEMENT OF THE CASE

Underlying proceeding
      Mr. Turner was, in violation of his Due Process rights, denied a competency

trial during his capital murder trial in which he was sentenced to death. This Court

instructed the trial court to determine if a retrospective competency trial is feasible.

If it is not, the record of the proceedings on remand are to be sent to this Court to

resume appellate review. Id.



                                           6
Respondent and Respondent’s actions
      Respondent is The Honorable Brady Elliott presiding over the 268th District

Court in Fort Bend County, Texas. Judge Elliott has denied Mr. Turner Due Process

by neglecting to make a proper feasibility determination prior to the imminent

retrospective competency trial.

                    III. STATEMENT OF JURISDICTION

      This Court has jurisdiction to issue writs of mandamus and writs of

prohibition in criminal matters. See Tex. Const. Art. V, § 5; see also In re Reece,

341 S.W.3d 360, 375 (Tex. 2011). This is a capital murder case in which the death

penalty was assessed and therefore this petition is properly filed in this Court.

Padilla v. McDaniel, 122 S.W.3d 805, 806 (Tex. Crim. App. 2003).

                           IV. ISSUES PRESENTED

       1. THE TRIAL COURT         ABUSED ITS DISCRETION BY MAKING A

          FEASIBILITY DETERMINATION OF       RELATOR’S    RETROSPECTIVE

          COMPETENCY TRIAL WITHOUT DUE PROCESS



       2. THE TRIAL COURT ABUSED ITS DISCRETION BY PROCEEDING TO
          RELATOR’S RETROSPECTIVE COMPETENCY TRIAL WITHOUT THE
          FEASIBILITY DETERMINATION THAT DUE PROCESS REQUIRES




                                        7
                               V. STATEMENT OF FACTS

Feasibility first

        This Court remanded this case because of a Due Process violation—an

improper denial of a competency trial. The only possible remedy for that error is a

retrospective competency trial. However, before conducting that trial, the trial court

must “first determine whether it is presently feasible to conduct a retrospective

competency trial.” Id. The feasibility determination is critical because of the

inherent difficulties in these types of trials. 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). The proceeding must be ruled feasible for it to go forward to ensure Mr.

Turner’s due process rights are protected. Drope v. Missouri, 420 U.S. 162, 183

(1975).

Counsel’s concerns

        At a May 30, 2014 hearing, defense counsel requested a competency exam to

determine Mr. Turner’s current competence 1 .            See Exhibit B: May 30, 2014

Reporter’s Record on Determination of Retrospective Competency. The request was




1 The request was based, in part, upon the opinion Greene v. State, 264 S.W.3d 271 (Tex. App.—
San Antonio 2008) in which the Court of Appeals found it unfeasible to have a retrospective
competency trial because Appellant was incompetent and was “expected to remain incompetent
for the indefinite future.” Id. at 272.
                                              8
prompted by counsel’s unsuccessful attempts to communicate with Mr. Turner and

particular concern for Mr. Turner’s lack of understanding of the proceedings given

the very unusual legal posture of his case.

       His perception of his attorneys and the legal system seems to be the same as

it was at trial, but it’s radicalized. While he knows that this proceeding has

something to do with competency, he believes it is a ruse so the judge and his lawyers

can prevent him from filing motions; his motions have to be secret because if his

lawyers hear about it they’ll shut him down. He frequently refers back to issues at

trial, such as the deposition video that he knows was edited to hide exculpatory

information from the jury. He is angry that his appellate lawyer, who represents him

at this stage, didn’t bring this video issue up and knows that “he’s the one that’s

really trying to kill me2.”

Feasibility in the future

         Respondent agreed that Mr. Turner’s current competency was relevant to

going forward.        He also explained the standard he would use to determine

competency: “. . . that is a finding that we’ve always followed in the law of




2 Mr. Turner made these statements, and many more, during a jail phone call with his sister on
November 3, 2014. Counsel does not have an official transcript of the call, but has listened to it,
and many others, in its entirety. It is part of the discovery provided by the State.
                                                  9
competency that if the person won’t cooperate and won’t participate, they are

determined to be competent.” Id. at 8. Respondent ruled:

       Because the request is a due process request to assist counsel; and,
       therefore it would be the same standard as we use for trial. And I think
       that would – In the abundance of caution, I think that would be the best
       way to proceed; and we can get this done at the earliest convenience;
       and dependent upon their [experts] findings, we’ll hold a hearing very
       shortly thereafter to proceed to the feasibility part of this issue.
Id.

       Counsel for the state and Relator each chose experts to conduct evaluations3.

3 doctors attempted to interview Mr. Turner and he refused to see each of them4.

Feasibility forgotten

       On September 25, 2014, with no other hearing since May 30th, a 1 page Order

was sent to the parties stating:

       On this day, the Court considered whether a retrospective competency
       trial is feasible. After hearing the arguments of counsel, and
       considering the evidence available, the Court finds that a retrospective
       competency trial is feasible.




3 The State requested the court appoint Dr. Mitchell Dunn and then requested Dr. Dunn be replaced
with Dr. David Self, who had to withdraw from the case, and ultimately they chose Dr. Mark
Moeller to attempt to interview Mr. Turner. The Defense asked Dr. Mary Alice Conroy to
interview Mr. Turner. Ultimately Dr. Self was able to attempt to see Mr. Turner. Mr. Turner
refused to see Dr. Moeller, Dr. Conroy, and Dr. Self.


                                               10
See Exhibit C Order on Feasibility of Retrospective Competency Trial. Trial was

set for December 1, 2014. The Order had been attached to the April 28, 2014 State’s

Bench Memorandum on the Feasibility of a Retroactive Competency Hearing5. See

Exhibit D. In fact, there was never a discussion or presentation of the “evidence

available” and there were no “arguments of counsel.”

Requesting review of the feasibility

         On defense counsel’s request, a pre-trial hearing was held on January 16, 2015

to ask the court to conduct a feasibility determination that meets the requirements of

Due Process. See Exhibit E January 16, 2015 Reporter’s Record Motions Hearing,

Volume I. At that time, defense counsel also presented Defendant’s Motion to

Address Mr. Turner’s Current Incompetency and Brief in Support. Exhibit F.

Incomplete inquiry

         Respondent denied Mr. Turner’s request and maintained that he had already

appropriately determined feasibility at the May 30th hearing. Id. at pp.12,15.

However, on May 30th, the only decision that had been made was that Mr. Turner’s

current competency was relevant and that he should be evaluated by mental health




5
    The Memorandum included a list of video visits and phone calls from the time of trial that
purportedly showed that there was enough evidence to have a retrospective competency trial.
                                               11
professionals 6 .    Respondent described what he believed to be the feasibility

determination:

       I, in fact, conducted a hearing on May 30th of '14 where I found that it
       was feasible to go forward with the competency exam -- or feasible to
       go forward with a retrospective competency hearing. I also ordered at
       that time another competency exam with Mr. Turner, and he refused to
       talk to the doctors that I sent up to talk to him, so the feasibility issue
       has already been decided.


       Id. at 12. Respondent refers to “all the evidence that is going to be produced

is his competency at the time of the Trial on the Merits.” Id. at 13. The criminal

proceedings against Mr. Turner began 4 years ago. As the prosecutor pointed out,

among other things, Respondent is supposed to evaluate the “passage of time” and

“the quality and quantity of the evidence.” Id. at 10.              Additionally, this Court

ordered the Respondent to consider “any other pertinent considerations” when

making the feasibility determination. Turner at 696.

       There has never been a review of anything other than Mr. Turner’s refusal to

speak with experts. There has been no discussion regarding the availability of lay

and expert witnesses, the recall of those witnesses, events that have occurred since

the trial, or any other “pertinent considerations.”




6 In its State’s Motion for Enforcement of the Trial Court’s Limited Jurisdiction on Remand, the
State describes the hearing as “a procedural and scheduling hearing.” Exhibit G p.2
                                               12
       Respondent only looked at one issue. That limited and superficial evaluation

of the evidence is not what this Court ordered and it is not enough to constitute a

feasibility determination consistent with Due Process such that a retrospective

competency trial can be conducted.

Straight to trial

       At present, there has been no testimony, evidence, or arguments regarding

feasibility. 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). Therefore, a proper determination requires facts. Due

Process demands that Mr. Turner be given the opportunity to provide information to

the trial court and that the information is thoughtfully considered.


                                    VI. ARGUMENT

                            A. Applicable Mandamus Law

       There are two requisites necessary in order to obtain relief on a writ of

mandamus: (1) the act sought to be compelled is ministerial and (2) the party seeking

relief must show that there is no adequate remedy at law7. In re State ex re. Weeks,

391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013).




7 The same requirements apply to writs of prohibition. See Ex parte Alba, 256 S.W.3d 682 (Tex.
Crim. App. 2008).
                                              13
“Clear right to the relief sought”

        In this context, a ministerial act is one which is “clearly compelled by the legal

authority extant in a given situation.” Ex rel. Hilbig v. McDonald, 877 S.W.2d at

470 (citing Buntion v. Harmon, 827 S.W.2d 945, 947-48 n.2 (Tex. Crim. App.

1982)). As this Court has recognized, the clear right to the relief sought is the

functional equivalent of a ministerial act. Id. (citation omitted).

        To show “a clear right to the relief sought,” Mr. Turner must show that the

facts and circumstances of this case “dictate but one rational decision ‘under

unequivocal, well-settled . . . and clearly controlling legal principles.’ ” In re

McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (quoting Weeks, 391 S.W.3d

at 117)8. Exhibit H.

        Upon remand, this Court ordered an evaluation of all “pertinent

considerations” to determine if a retrospective competency trial was feasible. Turner

at 696. The Respondent violated that Order and has not provided any forum in which

Mr. Turner can present witnesses, submit evidence, and argue the feasibility issue.




8 In re McCann is another Petition for a Writ of Mandamus arising out of the same this case. Judge
Elliott was also the Respondent in that proceeding which addressed the right of a client (Mr.
Turner) to control his legal file.
                                               14
Mandamus/Prohibition is the only adequate remedy

      Mandamus is the proper remedy to correct a clear abuse of discretion by a

trial court when the relator has no adequate remedy at law. Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Because a trial court "has

n o ‘discretion’ in determining what the law is or applying the law to the facts,"

a "clear failure by the trial court to analyze or apply the law correctly will constitute

an abuse of discretion." Id. at 840.

      Any conjured “potential review at a later time” is not an adequate remedy

here. Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645,

648-49 (Tex. Crim. App. 2005). “In some cases, a remedy at law may technically

exist; however, it may nevertheless 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).

      This Court has ordered the Respondent to make a feasibility determination

before proceeding with a retrospective competency trial to ensure that Mr. Turner’s

Due Process rights are protected. Turner at 696. Respondent must consider all

“pertinent considerations” when making that determination. Id. Respondent abused

his discretion by failing to follow this Court’s unambiguous mandate.



                                           15
       The only adequate remedy for Mr. Turner is for this Court to issue the Writs

of Mandamus and Prohibition in order to stay the trial and allow time for a proper

feasibility determination with the necessary Due Process protections.

                      VII. CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, Relator respectfully requests

that this Honorable Court grant this Petition for a Writ of Prohibition directing the

Respondent to postpone the retrospective competency trial and grant this Petition for

Writ of Mandamus and direct Respondent to conduct a hearing on the feasibility of

a retrospective competency trial.

                                       Respectfully submitted,


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


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


                                         16
                                   CERTIFICATION


       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.


                                           Robert A. Morrow
                                           ____________________________
                                           ROBERT A. MORROW



                       CERTIFICATE OF COMPLIANCE


       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that

this petition contains 2,810 words (excluding the caption, identity of parties and

counsel, table of contents, index of authorities, signature block, certification,

certificate of service, certificate of compliance, and appendix). 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.


                                            Robert A. Morrow
                                           ____________________________


                                             17
APPENDIX




   18
                         CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above Petition for Writ of
Mandamus and Petition for Writ of Prohibition was faxed and/or delivered
electronically on January 21, 2015 to:


Respondent


      The Honorable Brady Elliott
      Trial Court Judge
      368th Judicial District Court of Fort Bend County
      1422 Eugene Heimann Circle
      Richmond, Texas 77469
      Telephone: 281-341-8610
      Fax: 281-341-8614

Real Party in Interest


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

      Fred Felcman
      Assistant Criminal District Attorney
      1422 Eugene Heimann Circle
      Richmond, Texas 77469
      Telephone: 281-341-4460
      Fax: 281-341-4440
      Fred.Felcman@fortbendcountytx.gov




                                         Robert A. Morrow
                                         ____________________________
                                         ROBERT A. MORROW
                                          19
