                                                                   WR-80,559-02
                                                    COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                  Transmitted 1/23/2015 4:10:56 PM
                                                    Accepted 1/23/2015 4:24:29 PM
                                                                      ABEL ACOSTA
                 NO. WR-80,559-02                                             CLERK

       IN THE COURT OF CRIMINAL APPEALS      RECEIVED
                                      COURT OF CRIMINAL APPEALS
                STATE OF TEXAS               1/23/2015
                                                    ABEL ACOSTA, CLERK
       RELATING TO CAUSE N0. 10-DCR-054233
           FORT BEND COUNTY, TEXAS


          IN RE JAMES ALBERT TURNER

                       VS.

 HONORABLE BRADY G. ELLIOTT, JUDGE PRESIDING
   268TH DISTRICT COURT, FORT BEND, COUNTY


       STATE’S RESPONSE TO THE PETITION
PETITION FOR WRIT OF MANDAMUS AND PROHIBITION


                             JOHN F. HEALEY, JR.
                             District Attorney, 268th Judicial District
                             Fort Bend County, Texas

                             Fred M. Felcman
                             First Assistant District Attorney

                             Gail Kikawa McConnell
                             Assistant District Attorney
                             SBOT #11395400
                             Fort Bend County, Texas
                             301 Jackson Street, Room 101
                             Richmond, Texas 77469
                             (281) 341-4460 / (281) 238-3340 (fax)
                             Gail.McConnell@fortbendcountytx.gov

                             Counsel for the State of Texas,
                             Real Party in Interest
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 52.4, the State supplements relator’s list of counsel

as follows:

For The State of Texas, Real Party in Interest

Gail Kikawa McConnell                                     Assistant District Attorney
SBOT # 11395400
301 Jackson Street, Room 101
Richmond, Texas 77469




                                          i
                                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF COMPETENT EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX A:                 State’s answer to Turner’s motion to address current competency




                                                            ii
                                    INDEX OF AUTHORITIES

CASES                                                                                                     PAGE

Barber v. State,
      757 S.W.2d 359 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Greene v. State,
     264 S.W.3d 271, 272 (Tex. App.--San Antonio 2008, pet. ref’d). . . . . . . . . 5

Huggins v. Crews,
     2014 WL 5026425 (Fla. Oct. 9, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5

Moore v. Superior Court,
     237 P.3d 530 (Calif. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Ryder v. State,
      83 P.3d 856 (Okla. Crim. App.), cert. denied 543 U.S. 886 (2004).. . . . . 4,5

State v. McRae,
       594 S.E.2d 71 (N.C. Ct. App.),
       pet. denied 599 S.E.2d 911 (N.C. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5

Turner v. State,
      422 S.W.3d 676 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . 1-2


STATUTES AND RULES

TEXAS CODE OF CRIMINAL PROCEDURE
    Article 46B.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Article 46B.005. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                        iii
                              NO. WR-80,559-02
                     IN THE COURT OF CRIMINAL APPEALS
                              STATE OF TEXAS

                     RELATING TO CAUSE N0. 10-DCR-054233
                         FORT BEND COUNTY, TEXAS


                        IN RE JAMES ALBERT TURNER

                                         VS.

         HONORABLE BRADY G. ELLIOTT, JUDGE PRESIDING
           268TH DISTRICT COURT, FORT BEND, COUNTY


              STATE’S RESPONSE TO THE PETITION
       PETITION FOR WRIT OF MANDAMUS AND PROHIBITION


TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

                          STATEMENT OF THE CASE

      This is a death penalty case. On October 30, 2013, this Court remanded this

case, instructing:

      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.
      Should the trial court deem a retrospective competency trial to be
      feasible, it shall proceed to conduct such a trial in accordance with
      Chapter 46B, Subchapter C, of the Code of Criminal Procedure.
      Regardless of whether the trial court deems a retrospective competency
      trial to be feasible, the record of the proceedings on remand shall then

                                          1
      be returned to this Court for reinstatement of the appeal.

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

      On April 2, 2014, this Court denied the State’s motion for rehearing and issued

its mandate.

                            STATEMENT OF FACTS

      On May 30, 2014, the trial court held a hearing on the feasibility of a

retrospective competency trial. [Pet. Ex. B, RR-5/30/14 at 1] At that hearing, for the

first time, Turner presented the Court with Greene v. State, 264 S.W.3d 271, 272

(Tex. App.--San Antonio 2008, pet. ref’d), holding that a defendant must be currently

competent to stand a retrospective competency trial. [Pet. Ex. B, RR-5/30/14 at 6]

In an abundance of caution, the trial court invited Turner and the State to each submit

the name of a psychiatrist to evaluate Turner for contemporary competency. [Pet. Ex.

B, RR-5/30/14 at 16, 17-18]

      The trial court appointed Dr. Mary Alice Conroy a psychologist on the

recommendation of Appellant, and Dr. Mark Moeller, a psychiatrist on the

recommendation of the State. Turner refused to see both doctors. [Appendix A,

being a copy of the State’s answer to Turner’s motion to determine his current

competency, Exhibits A & B]

      The trial court found that a retrospective competency trial is feasible and set

                                          2
this cause for trial on December 1, 2014.

      On December 1, 2014, the Court reset the retrospective hearing to January 26,

2015. On January 16, 2015, Turner re-urged his motion to determine current

competency, which the trial court denied after reaffirming its determination that the

retrospective competency trial was feasible. [App-Ex E at 1, 15-16]

                                   ARGUMENT

      In two issues, Relator asserts the trial court “abused its discretion” in

determining a retrospective competency trial without due process. The crux of both

issues is that Relator believes he is entitled to a jury trial on his contemporary

competency. Relator omits the State’s answer to his motion in the trial court. The

State files this response to supplement the record with the State’s answer to Turner’s

motion, which shows that the trial court did not abuse its discretion in proceeding

without a jury trial on his contemporary competency. See Appendix A, being a copy

of the answer.

      Further, Relator fails to show this Court that he has no adequate remedy in the

appeal of the jury’s determination of his retrospective competency. See Barber v.

State, 757 S.W.2d 359 (Tex. Crim. App. 1988). The issue of whether a contemporary

competency must be determined before a retrospective competency trial is held has

been determined by courts in other states on appeal from the retrospective

                                            3
competency trial. See, Ryder v. State, 83 P.3d 856, 870-71 (Okla. Crim. App.), cert.

denied 543 U.S. 886 (2004) (death penalty case); and State v. McRae, 594 S.E.2d 71,

79 (N.C. Ct. App.), pet. denied 599 S.E.2d 911 (N.C. 2004). See also, Huggins v.

Crews, 2014 WL 5026425, at *4 (Fla. Oct. 9, 2014) (on appeal of the denial of post

conviction relief in a death penalty case, deciding that the trial court did not abuse its

discretion in failing to hold competency proceedings prior to the evidentiary hearing

on whether Huggins was competent to proceed with post conviction matters).

      Relator has an adequate remedy on appeal of the retrospective competency

trial. Relator’s petition should be denied.

      Relator relies on this Court’s opinion on direct appeal, remanding this case for

a competency trial in part because the trial court appointed an expert to evaluate

Turner for competency to stand trial:

      In any event, here, at least as of May 20, 2011, when voir dire was
      interrupted for the hearing at which Dr. Almeida testified, the trial court
      was obviously persuaded that a bona fide doubt did exist as to the
      appellant’s competency.

Turner, 422 S.W.3d 676.

      As shown in the reporter’s record of the May 16, 2014, hearing on the

feasibility of a retrospective competency hearing, the trial court never doubted that

Turner was competent to stand trial, but had appointed Dr. Almeida and heard her



                                            4
testimony to make a full record. [App. A, Ex A at 17-18]

      This case is again in the same posture as at trial. The trial court again

appointed experts to evaluate Turner for contemporary competency at the urging of

counsel on the questionable authority of Greene v. State, 264 S.W.3d 271, 272 (Tex.

App.--San Antonio 2008, pet. ref’d).      Greene cited no authority in requiring

contemporary competency for a retrospective competency trial. Greene is the only

authority cited by Turner to require a trial court to determine contemporary

competency for a retrospective competency trial, and the State has found no other

case to so require.

      Rather, the State has found contrary authority holding that no finding of

contemporary competency is required for a retrospective competency trial. See,

Ryder v. State, 83 P.3d 856, 870-71 (Okla. Crim. App.), cert. denied 543 U.S. 886

(2004) (death penalty case); and State v. McRae, 594 S.E.2d 71, 79 (N.C. Ct. App.),

pet. denied 599 S.E.2d 911 (N.C. 2004). See also, Huggins v. Crews, 2014 WL

5026425, at * (Fla. Oct. 9, 2014). See also, Moore v. Superior Court, 237 P.3d 530,

543 (Calif. 2010) (holding that although the Sexually Violent Predators Act provides

“the person shall be entitled to the rights guaranteed under the federal and State

Constitutions for criminal proceedings,” the person does not have a due process

competence right in part because such “could prevent an SVP determination from

                                         5
being made at all”).

      The State’s petition for discretionary review in Greene did not raise the

question of whether contemporary competency was required for a retrospective

competency trial. [App. A, Ex F] Whether the Court would require contemporary

competency is a question that may be taken by Turner on appeal.

      The trial court appointed, “in an abundance of caution” to give the Court a full

record, two experts to evaluate Turner.        Turner refused to be evaluated for

competency. That is his choice. The presumption of competency should prevail.

Tex. Code Crim. Proc. art. 46B.002(b) (West 2014). Turner tendered no evidence,

other than the arguments of counsel, to show otherwise.

      Article 46B.005 requires “that evidence exists to support a finding of

incompetency,” before a trial is required. Tex. Code Crim. Proc. art. 46B.005(b)

(West 2014). That phrase should not require a trial just because a trial court

appointed experts “in an abundance of caution” to assure the court that it did not miss

what trained psychiatric experts might see. Given the presumption of competency,

the bar on “evidence exists to support a finding of incompetency” should not be set

so low that any argument of incompetency by defense attorneys--without any valid

expert finding of incompetency, without any prior history of mental illness, without

any report by family members or friends of mental illness, without any showing of

                                          6
brain injury--should require a trial on competency.

                                     PRAYER

      Real party in interest, The State of Texas, prays that the petition for Writs of

Mandamus and Prohibition be denied.

                                              Respectfully submitted,

                                              John F. Healey, Jr.
                                              SBOT 09328300
                                              District Attorney, 268th Judicial District
                                              Fort Bend County, Texas

                                              /s/ Fred M. Felcman
                                              SBOT # 06881500
                                              First Assistant District Attorney

                                              /s/ 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




                                          7
               CERTIFICATE OF COMPETENT EVIDENCE

      I hereby certify that I have reviewed the foregoing petition and every factual

statement is supported by competent evidence included in the appendix or record.


                                              /s/ Fred M. Felcman
                                              Fred M. Felcman



                      CERTIFICATE OF COMPLIANCE

      I hereby certify that the State’s Response to the petition for writ of mandamus,

in total contains 1,878 words as counted by WordPerfect 12, which is less than the

15,000 word limit for a response to an original petition. Tex. R. App. 9.4(i)(2)(B).

                                              /s/ Gail Kikawa McConnell
                                              Gail Kikawa McConnell



                         CERTIFICATE OF SERVICE

      I hereby certify that a copy of the State's response was served by electronic

mail on January 23, 2015, on Robert Morrow and Amy Martin, attorneys for Relator,

and on Hon. Brady G. Elliott, Judge, 268th District Court, Respondent.

                                              /s/ Gail Kikawa McConnell
                                              Gail Kikawa McConnell




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APPENDIX A
