Green, Jonathan Marcus

374 S.W.3d 434, 2012 WL 2400651, 2012 Tex. Crim. App. LEXIS 866
Court of Criminal Appeals of Texas·Decided June 27, 2012·No. AP-76,374, AP-76,376, AP-76,381·Published·Cited by 58 cases

Opinions

WOMACK, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and MEYERS, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The appellant has been convicted of capital murder and sentenced to death. Shortly before the scheduled execution of the sentence on June 30, 2010, he applied for a writ of habeas corpus on the ground that he was incompetent to be executed. After the trial court held a hearing and found him competent, we stayed his execution to review the trial court’s determination.

Having reviewed the three matters the appellant brought to us, we shall lift the stay of execution. First, we hold that Article 46.05 of the Code of Criminal Procedure provides an adequate remedy for claims of incompetence to be executed, which leads us to dismiss the appellant’s application for a writ of habeas corpus (AP-76,376). Second, we hold that the district court applied the correct legal standard and was within its discretion to find the appellant competent; therefore, we affirm the court in AP-76,374. Finally, we dismiss the appellant’s appeal from the denial of his motion to recuse the trial judge (AP-76,381) because it is not properly before this court.

I. BACKGROUND

The appellant was convicted of capital [437] murder1 and sentenced to death in 2002. The facts of the offense are summarized in our opinion on his direct appeal.2 After the appellant exhausted all state and federal appeals and writs of habeas corpus, his execution was scheduled for June 80, 2010. On June 23, the appellant filed his first subsequent application for a writ of habeas corpus, alleging that he was incompetent to be executed and requesting an Article 46.05 hearing to determine his competency.3

On June 28, the District Court held a competency hearing. The appellant first called Dr. Diane Mosnik, an assistant professor of psychiatry and neurology, who testified that, based on her examination of the appellant, she believed he was incompetent to be executed. Acknowledging the standard for competence established in the United States Supreme Court’s decision in Panetti v. Quarterman,4 Dr. Mosnik testified that she believed the appellant was “aware that the State has scheduled him to be executed, but he is not aware ... that he is responsible for a crime for which he’s being executed.” On cross-examination, the State asked Dr. Mosnik about her credentials. She testified that she had testified as a mental-health expert in criminal cases “[a]bout five times.” Each time she had been hired by the defense, and each time she had testified that the defendant was incompetent.

The appellant then testified. He said that various “personalities or things” and “demons” lived inside of him and controlled some of his actions. He stated his belief that he was “locked up for no reason, accused of killing someone that ... [he] never killed.” He further testified that he did not receive a fair trial, referencing by name the trial judge, his trial attorney, and witnesses. On cross-examination, the appellant testified that he understood that he had an execution date set. He explained his sentence by saying the jury “assumed” that execution was the appropriate sentence in his case.

The State’s only witness was a psychiatrist, Dr. Mark Moeller. He told the court that he had testified as a mental-health expert before, and he had found some defendants competent to be executed and others to be incompetent. He said that, based on his two meetings with the appellant, he disagreed with Dr. Mosnik’s conclusion. Dr. Moeller said that the appellant exhibited signs of “symptom magnification”: the intentional exaggeration of symptoms in an effort to achieve secondary gain. Dr. Moeller found that the appellant was competent to be executed based on Panettis “requirements.” Specifically, it was his professional opinion that the appellant had the capacity to understand rationally the connection between his conviction and his death sentence.

The trial court concluded that the appellant was sufficiently competent:

I’m going to find that, based on all the evidence, that you appear to understand the reason for imminent execution; but for the record, I’m going to state that the most compelling evidence of all was from your own expert ... which shows that you know you are to be executed by [438] the State, you know you are convicted of killing the victim, Christina Neal, you know the execution date, and then you proclaimed your innocence which shows a rational understanding of your imminent date and you know the charges that were against you.
You knew the names of appellate counsel, the name of your trial counsel, name of your current attorney, you knew your first, second, and third attorneys on this case. You knew that you had the right to have trial counsel and appellate counsel, and I further find that you appreciated the adversarial nature of the trial and proceedings. Therefore, I find that you are not incompetent and I will not grant a stay of execution and that’s my ruling....
Let me state on the record that I talked about the three different types of subsequent writs just to show that I had read the statute, that I had an understanding of the statute, and that I knew that we were here on the incompetence claim. I did listen to both sides. I did follow the Panetti standard ... and I did also apply the Ford standard in this case. And after applying all of those standards, it’s my ruling that I am not granting the stay in this case.

The appellant appealed the trial court’s determination, which was forwarded to this court for our review pursuant to Article 46.05.

The appellant also applied for a writ of habeas corpus challenging the trial court’s ruling, accompanied by a brief arguing that competency-to-be-executed claims are cognizable on habeas corpus. In light of questions about the standard used by the trial court in concluding that the appellant was competent, we stayed the appellant’s execution and ordered the trial judge to file with us a written clarification of the standard she used.5

II. COGNIZABLE ON HABEAS

We first address the appellant’s contention that competency-to-be-executed claims are cognizable on a writ of habeas corpus.

Article 46.05 of the Code of Criminal Procedure states, “A person who is incompetent to be executed may not be executed.”6 The article defines incompetency and provides procedures for a competency-to-be-executed hearing in the trial court7 and for review in this court.8

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Green, Jonathan Marcus, 374 S.W.3d 434, 2012 WL 2400651, 2012 Tex. Crim. App. LEXIS 866 (Tex. 2012).

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