                                                                                 WR-82,875-01,02
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 8/10/2015 7:22:57 PM
August 11, 2015                                                        Accepted 8/11/2015 8:15:26 AM
                                                                                       ABEL ACOSTA
                          NO. WR-82,875-01 and WR-82,875-02                                    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 PETITIONS FOR WRITS OF MANDAMUS AND PROHIBITION
  FROM CAUSE NO. 10-DCR-054233 IN THE 268TH DISTRICT COURT,
                    FORT BEND COUNTY




                  Real Party in Interest’s Brief on Designated Issues



                                  *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

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

supplementation. Texas Rule of Appellate Procedure 52.4(a).




                            TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL _____________________________ 2

INDEX OF AUTHORITIES __________________________________________ 3

DESIGNATED ISSUES _____________________________________________ 4

    1. Must a defendant be presently competent in order for a retrospective
    competency trial to occur? ________________________________________ 4
    2. If so, does the trial court have the authority to require a jury to determine
    the issue of present competency? ___________________________________ 4

ARGUMENT _____________________________________________________ 5

   A defendant must be presently competent in order for a retrospective
   competency trial to occur ________________________________________ 5

   The Trial Court has the Authority to Require a Jury to Determine
   the Issue of Present Competency _________________________________ 12

CONCLUSION ___________________________________________________ 14

CERTIFICATE OF COMPETENT EVIDENCE _________________________ 16

CERTIFICATE OF COMPLIANCE___________________________________ 16

CERTIFICATE OF SERVICE _______________________________________ 17


                                          2
                                     INDEX OF AUTHORITIES


CASES

Barber v. State, 737 S.W.2d 824, 828 (Tex. Crim. App. 1987) ...........................8,13
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) ....................................5
Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979) ...........................8
Drope v. Missouri, 420 U.S. 162, 183 (1975). ..........................................................6
Ex parte Lawton, No. WR-65,068-01, 2006 WL 3692632, at *1 (Tex. Crim. App.
  Dec. 13, 2006) ......................................................................................................11
Greene v. State, 264 S.W.3d 271, 273 (Tex. App.—San Antonio 2008) .......... 10,13
In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015) ...............................................13
Jackson v. State, 548 S.W.2d 685, 690 (Tex. Crim. App. 1977).............................10
Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) ......................................6, 11
Medina v. California, 505 U.S. 437, 450-51 (1992)..................................................9
Pate v. Robinson, 383 U.S. 375, 387 (1966) ........................................................9,11
State v. Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App. 2012) abrogated by
  Whitfield v. State, 430 S.W.3d 405 (Tex. Crim. App. 2014). ..............................12
Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013) ...........................5

STATUTES

Texas Code of Criminal Procedure Article 46B.051 .................................................6
Texas Code of Criminal Procedure Article 37.071 .................................................14

RULES

Texas Rule of Appellate Procedure 52.4(a) ...............................................................2
Texas Rule of Appellate Procedure 9.4(i)(3) .......................................................16


                                                           3
                     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 BRIEF ON DESIGNATED ISSUES


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 Brief on Designated Issues.


                                  DESIGNATED ISSUES

      This Court has ordered that relator and Mr. Turner, and invited the trial court

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?



                                           4
                                    ARGUMENT


This Court made it clear that the trial court’s feasibility determination was not to
be limited to the listed factors, but to take into account all related information:

            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).

  A DEFENDANT MUST BE PRESENTLY COMPETENT IN ORDER FOR A
         RETROSPECTIVE COMPETENCY TRIAL TO OCCUR

A poor substitute

      When an error is made at trial and a defendant is denied his constitutional right

to a competency trial before his conviction and sentence, the proposed solution is a

retrospective competency trial, but only if it is feasible. Courts, including this one,

have consistently acknowledged “the difficulties inherent in making a retrospective

determination of a defendant's competency. The United States Supreme Court has

stressed these difficulties in its decisions.” 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).




                                           5
       Just as this Court made clear in its directive on remand, the Fifth Circuit has

held: “In answering the threshold question whether a meaningful retrospective

hearing on competency can be held, the lower court must take the initiative to insure

that all relevant evidence comes before it.” Martin v. Estelle, 583 F.2d 1373, 1374

(5th Cir. 1978).

Distinct remedy

       Relator argues that this Court’s acknowledgment of the necessity of present

competency for a retrospective trial would somehow affect the requirements of a

traditional competency trial1. A retrospective competency trial is an attempt to fix a

mistake, not a pre-trial procedural safeguard.

       The issue before this Court now, in this mandamus proceeding, has nothing to

do with traditional competency trials, and any ruling here will not necessarily have

any impact on them.          Unlike the clearly defined procedures for a traditional

competency trial, the process of a retrospective competency trial is judicially

created, amorphous, and riddled with problems implicating due process. Drope v.

Missouri, 420 U.S. 162, 183 (1975).

       As convenient as it would be to have a method that could take us back to the

place and time at which the competency trial should have occurred, it’s simply not



1
 The term “traditional competency trial” is used to indicate a competency trial described by Article
46B.051 of the Texas Code of Criminal Procedure.

                                                 6
possible. A retrospective competency trial is not just a historical review; it is an

attempt to use information, that may or may not still be available, to determine a

defendant’s state of mind at very particular points in time and how that state of

mind affected very particular things— the judicial proceedings and the attorney-

client relationship.   A defendant must be competent for the duration of the

proceedings. Therefore, the jury is not just evaluating competency during the trial

generally, but deciding whether or not, at any given point in time, a defendant was

incompetent. Competency can change.

      Time does not stand still. In Mr. Turner’s case, it has been more than 4 years

since his trial and Mr. Turner’s experiences, which have undoubtedly changed his

state of mind, have included being housed on death row, spending time in a TDCJ

psychiatric unit, and being medicated.

Retrospective competency trials are presumed unconstitutional

      Courts have repeatedly warned of the pitfalls of retrospective competency

trials and stressed the importance of proper feasibility determinations.

      It is evident why courts stress the fact that this peculiar procedure which

attempts to re-create the past, violates an individual’s due process rights unless

necessary measures are taken. Drope at 183. There are “inherent difficulties” even

“under the most favorable circumstances.” Id.




                                          7
         Whether or not a retrospective trial can be held within the limits of due process

depends “upon the quality and quantity of the evidence available.” Barber v. State,

737 S.W.2d 824, 828 (Tex. Crim. App. 1987).

         Examining the quantity and quality of the evidence is done on a case-by-case

basis.    Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979). A

retrospective determination of competency may satisfy due process requirements,

depending on the particular facts of a case. Id.

That was then

         At the time of trial, when a traditional competency trial is requested, counsel

is seeing and interacting with their client regularly. (In Mr. Turner’s case the

interaction was daily). A defendant is also interacting with court and jail personnel.

Counsel has records of, and the ability to quickly contact, every person—defense

team, jail personnel, prosecutors, and visitors that come into contact or speak with

the defendant contemporaneously. Counsel knows exactly what the defendant’s

daily housing and health conditions are. And they are able to observe the client’s

reaction to the proceedings—the proceedings for which he is required to be

competent.

         Even though a defendant is incompetent during a traditional competency trial,

his attorney is able to conduct extemporaneous evidence collection and evaluation.




                                             8
      In a traditional competency trial, the incompetent “defendant might be limited

in his ability to assist counsel in demonstrating incompetence, the defendant's

inability to assist counsel can, in and of itself, constitute probative evidence of

incompetence, and defense counsel will often have the best-informed view of the

defendant's ability to participate in his defense.” Medina v. California, 505 U.S.

437, 450-51 (1992).

This is now

      In a retrospective competency trial, an incompetent defendant is probative of

nothing and is an obstacle to obtaining and presenting evidence. An incompetent

defendant makes a retrospective competency trial unfeasible and therefore

unconstitutional. Factors frequently cited to illustrate the danger of retrospective

competency trials are the passage of time and a jury’s inability to observe the

defendant. Pate v. Robinson, 383 U.S. 375, 387 (1966).

      The passage of time erodes evidence from all sources—documents, counsel,

expert witnesses, lay witnesses and the defendant himself.

      In Mr. Turner’s case, the defendant is currently incompetent. And now,

counsel does not have daily interaction with him or daily interaction with the

personnel that spend time with him. They have not been able to observe him in the

courtroom, his paranoia seems to have deepened, and he is even less communicative.

He is a primary source of evidence and necessary to meaningfully question


                                         9
witnesses. He is potentially also the source of valuable information that could help

re-create and understand his condition at the time of trial. All of that evidence is

inaccessible and unavailable because of his current incompetency.

Due process

       When a defendant is erroneously denied a traditional competency trial, he is

placed in a unique and dramatically more complex situation with a considerable

likelihood that he could, yet again, be denied due process. This complexity requires

his participation, at least to some degree. In Greene the San Antonio Court of

Appeals examined the permissibility of having a retrospective competency trial with

a currently incompetent defendant:

            Clearly, Greene's ability to assist his trial attorney will be
            critical to the outcome of issues to be addressed at the
            retrospective competency determination and he should not be
            deprived of his right to assist counsel.
Greene v. State, 264 S.W.3d 271, 273 (Tex. App.—San Antonio 2008)2.

       A defendant has constitutional protections during a traditional competency

trial. It is “quasi-criminal” and this Court has found it to be “ancillary to the main

criminal proceeding.” Jackson v. State, 548 S.W.2d 685, 690 (Tex. Crim. App.

1977).




2
 In Greene, there was a finding that he was unlikely to regain competency in the foreseeable future
and the retrospective competency trial was not held.

                                                10
       A defendant is entitled to relief when he is “denied effective assistance of

counsel at their [his] competency hearing, where the competency hearing was

improper for some reason, or where a trial court erroneously failed to hold a

competency hearing.3” Ex parte Lawton, No. WR-65,068-01, 2006 WL 3692632, at

*1 (Tex. Crim. App. Dec. 13, 2006).

       A traditional competency trial is subject to due process requirements, and if a

retrospective competency trial is meant to replace that trial that a defendant was

wrongfully denied, the requirements are the same. Because of the radically different

circumstances, numerous difficulties, and high risk of constitutional violations in a

retrospective trial, due process requires that a defendant be currently competent for

a retrospective competency trial to occur.

       If the retrospective competency trial is flawed in such a way that Mr. Turner’s

rights were not protected, this case will again be remanded and we will find ourselves

in this same procedural posture with the same incompetent Mr. Turner. Martin v.

Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978).

       Given the likelihood that exists for a retrospective competency trial to violate

a defendant’s constitutional rights, he must be competent to participate in the

proceeding for it to occur.



3
 Cases often use the word “hearing” instead of “trial.” However, the references are to the same
type of competency trials at issue here.

                                              11
    THE TRIAL COURT HAS THE AUTHORITY TO REQUIRE A JURY TO
          DETERMINE THE ISSUE OF PRESENT COMPETENCY

Texas Constitution Article V, § 8 describes a District Court’s jurisdiction:
         District Court jurisdiction consists of exclusive, appellate, and original
         jurisdiction of all actions, proceedings, and remedies, except in cases
         where exclusive, appellate, or original jurisdiction may be conferred by
         this Constitution or other law on some other court, tribunal, or
         administrative body. District Court judges shall have the power to issue
         writs necessary to enforce their jurisdiction.

         There is no other statute or constitutional provision that grants exclusive

jurisdiction of retrospective competency trials to any other tribunal.

Authority to act

         When this Court remands a case to a trial court for a feasibility determination,

it is giving the court the jurisdiction to follow those instructions. State v. Holloway,

360 S.W.3d 480, 485 (Tex. Crim. App. 2012) abrogated by Whitfield v. State, 430

S.W.3d 405 (Tex. Crim. App. 2014).

         The judge is also given the authority to require a jury to determine the issue

of present competency4. A retrospective competency trial is not statutorily defined.

It is a judicially created attempt to remedy the denial of a traditional competency

trial.




4
 “‘Authority’, on the other hand, may be used to refer to the power of an individual—the judge
who presides over the court—to act under that grant of jurisdiction.” Id.

                                              12
       When this Court dictates obligations for the trial court—not restrictions,

nothing prohibits empaneling a jury. The trial court was ordered to determine

“present” feasibility and consider “the passage of time, availability of evidence, and

any other pertinent considerations.5”

       In this case, respondent has not ruled that a jury’s verdict regarding current

competency would determine feasibility. The verdict would be one among several

considerations.

       In In re Allen, this Court held that the Court of Appeals wrongly decided that

a trial judge acted outside his authority when he granted motions for a pre-trial Atkins

hearing. In re Allen, 462 S.W.3d 47 (Tex. Crim. App. 2015).6 This Court held: “The

statute currently provides no statutory, procedural scheme defining how intellectual-

disability issues should be handled.” Id. at 50.                That is also true regarding

retrospective competency trials. In fact, there is no statute creating the proceeding

at all. Just as the trial court in Allen was permitted to conduct a pre-trial Atkins

hearing, respondent has the authority to require a jury to determine present

competency.




5
  These elements are representative on the type that trial courts are ordered to consider. Barber at
828; Greene at 273.
6
  This case was decided after relator’s and Mr. Turner’s pleadings were filed in this case and
supports the denial of Mr. Turner’s opposition to prohibiting a current competency trial.

                                                13
      There is nothing in Texas law that prohibits a judge from using a jury’s verdict

to assist in decision making. In the death penalty sentencing scheme, a judge is

required to render a sentenced based upon a jury’s answer to special issues. Texas

Code of Criminal Procedure Article 37.071.

      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.



                                   CONCLUSION

      A defendant must be competent to receive a retrospective competency trial

that does not violate his constitutional rights. The trial court judge to whom the case

has been remanded has the authority to permit a jury to make the determination of

the defendant’s current competency.




                                          14
      WHEREFORE, PREMISES CONSIDERED, the real party in interest

respectfully requests that the case be remanded to the trial court to proceed with a

current competency trial.

                                      Respectfully submitted,




                                        /s/ Robert A. Morrow
                                       ____________________________
                                      ROBERT A. MORROW
                                      State Bar No. 14542600
                                            o
                                      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




                                        15
                  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




                          CERTIFICATE OF COMPLIANCE


       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this
petition contains 2,942 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 t y p e f a c e .   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




                                                16
                          CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above Real Party in Interest’s
Brief on Designated Issues was delivered electronically on August 10, 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



                                          17
