Turner, Albert James

• Court: Court of Appeals of Texas
• Decided: January 21, 2015
• Docket: WR-80,559-02
• Status: Published

Opinion

Appendix Index

Exhibit Document Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013), reh'g denied A (Apr. 2, 2014)

B May 30, 2014 Reporter’s Record on Determination of Retrospective Competency

C September 25, 2014 Order on Feasibility of Retrospective Competency Trial

April 28, 2014 State’s Bench Memorandum on the Feasibility of a Retroactive D Competency Hearing January 16, 2015 Reporter’s Record on Determination of Retrospective E Competency January 16, 2015 Defendant’s Motion to Address Mr. Turner’s Current F Incompetency and Brief in Support July 7, 2014 State’s Motion for Enforcement of the Trial Court’s Limited G Jurisdiction on Remand

H In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) Exhibit A Turner v. State, --- S.W.3d ---- (2013)

The constitutional standard for competency to stand trial asks whether the defendant has a 2013 WL 5808250 sufficient present ability to consult with his Only the Westlaw citation is currently available. lawyer with a reasonable degree of rational NOTICE: THIS OPINION HAS NOT BEEN understanding and whether he has a rational as RELEASED FOR PUBLICATION IN THE well as factual understanding of the proceedings PERMANENT LAW REPORTS. UNTIL RELEASED, against him. IT IS SUBJECT TO REVISION OR WITHDRAWAL. 5 Cases that cite this headnote Court of Criminal Appeals of Texas. [3] Mental Health Albert James TURNER, Appellant Mental Disorder at Time of Trial v. The legislative criteria for competency to stand The STATE of Texas. trial contemplate a defendant who is at least No. AP–76580. | Oct. 30, 2013. minimally able to interact with his trial counsel in a reasonable and rational way, even if they do not Synopsis necessarily agree, in formulating decisions how Background: Defendant was convicted in the District Court, most effectively to pursue his defense. Fort Bend County, Brady Elliott, J., of the intentional murder of his wife and mother-in-law during the same criminal 1 Cases that cite this headnote transaction, which was a capital offense. Defendant appealed. [4] Mental Health Mental Disorder at Time of Trial [Holding:] The Court of Criminal Appeals, Price, J., held that In the context of competency to stand trial, formal competency trial became warranted approximately there is particular cause for concern when a one month after initial evaluations by psychologist and defendant's mental impairment directly touches psychiatrist finding defendant competent to stand trial. upon certain fundamental decisions that the criminal justice system reserves for him to make personally, albeit after engaging meaningfully Abated and remanded. with counsel, such as whether to testify in his own defense. Keller, P.J., dissented and filed opinion in which Meyers, Keasler, And Hervey, JJ., joined. Cases that cite this headnote

[5] Mental Health West Headnotes (12) Mental Disorder at Time of Trial Precisely because the defendant retains ultimate authority over fundamental decisions that the [1] Constitutional Law criminal justice system reserves for him to make Incompetency or Mental Illness personally, such as whether to testify in his A criminal defendant who is incompetent may own defense, it is critical, in deciding whether not be put to trial without violating due process. defendant is competent to stand trial, that he be U.S.C.A. Const.Amend. 14. able to consult with counsel with a reasonable degree of rational understanding about them. 1 Cases that cite this headnote 1 Cases that cite this headnote [2] Mental Health Mental Disorder at Time of Trial [6] Mental Health

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Mental Disorder at Time of Trial Const.Amend. 14; Vernon's Ann.Texas C.C.P. A defendant's mental illness plus his failure to art. 46B.004. communicate with counsel will invariably or 2 Cases that cite this headnote necessarily add up to a finding of incompetence to stand trial. [10] Criminal Law Cases that cite this headnote Doubt as to Competency; Reasonable Cause or Grounds [7] Mental Health Trial court was not required to conduct a formal Mental Disorder at Time of Trial competency trial following initial evaluations Neither the fact that a defendant is mentally ill by psychologist and psychiatrist in prosecution nor that he obstinately refuses to cooperate with for intentional murder of defendant's wife his trial counsel by itself mean he is incompetent and mother-in-law during the same criminal to stand trial. transaction, where psychologist and psychiatrist deemed him to be competent, and trial counsel Cases that cite this headnote made no request at the time for a formal competency trial. Vernon's Ann.Texas C.C.P. art. 46B.004. [8] Criminal Law Doubt as to Competency; Reasonable 1 Cases that cite this headnote Cause or Grounds In determining whether some evidence from any [11] Criminal Law source of defendant's incompetency to stand trial Successive Proceedings in General had arisen by the time of informal competency inquiry, trial court must consider only that Approximately one month after initial evidence tending to show incompetency, putting evaluations by psychologist and psychiatrist aside all competing indications of competency, finding defendant competent to stand trial, there to find whether there is some evidence, a quantity was at least some evidence that supported more than none or a scintilla, that rationally may a rational finding that defendant lacked the lead to a conclusion of incompetency. Vernon's capacity to engage with his trial counsel Ann.Texas C.C.P. art. 46B.004(c). rationally or to make rational choices with respect to his legal strategies and options and, 3 Cases that cite this headnote thus, formal competency trial was warranted in prosecution for intentional murder of defendant's wife and mother-in-law during the same criminal [9] Constitutional Law transaction, which was a capital offense, where Necessity; Right to Hearing defendant threatened his attorney with physical Criminal Law violence over disagreement with strategy to Successive Proceedings in General depose defendant's children, defendant was upset Should the formal competency trial result in that trial counsel was not pursuing defendant's a finding of competency, the trial court is apparently delusional and clearly irrelevant not obliged to revisit the issue later, absent a defense that the mayor had sired his youngest material change of circumstances suggesting that child, and defendant's paranoia had progressed to the defendant's mental status has deteriorated; the point that he believed that his attorneys were however, especially when there has been a openly conspiring with the prosecutors to secure suggestion of incompetency, but no formal his conviction. Vernon's Ann.Texas C.C.P. art. adjudication of the issue, due process requires 46B.004. the trial court to remain ever vigilant for changes in circumstances that would make Cases that cite this headnote a formal adjudication appropriate. U.S.C.A.

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offense. 1 The jury answered the statutory special issues in [12] Criminal Law such a way that the trial court was required to assess the death Conduct of Trial or Hearing penalty. 2 Direct appeal is automatic in this Court. 3 To the extent that the defendant's disastrous decision to testify was the product of a conflict The appellant does not challenge the sufficiency of the with trial counsel that derived from a paranoid evidence to support either his conviction or death sentence. In pathology, it was constitutionally intolerable in fourteen of his twenty-four points of error, he claims that he prosecution for intentional murder of his wife was incompetent to stand trial, or that the trial court should and mother-in-law during the same criminal at least have paused the proceedings at various stages of trial transaction, which was a capital offense, and, to conduct a formal competency hearing, as his trial counsel thus, a formal competency trial that could have ruled out that substantial possibility before repeatedly requested. 4 In order to address these various proceeding to trial on the indictment was points of error adequately, we must undertake a detailed warranted, where defendant took the witness recitation of certain events transpiring before and during trial. stand against the advice of counsel, he proceeded to testify at odds with the defensive posture of his lawyers based upon a wholesale denial of COMPETENCY TO STAND TRIAL responsibility that was worse than implausible, which opened the door for the prosecutors The evidence at trial showed that, just after midnight on to expose the irrationality of his account on December 27, 2009, the appellant entered the home of his in- cross-examination and then to highlight, at both laws and killed his wife, Keitha Turner, and his mother-in- the guilt and punishment phases of trial, that law, Betty Jo Frank, cutting their throats while his three young his willful refusal to acknowledge blame was children were present in the house. 5 Although we find no nothing but a clear signal of his enduring indictment in the clerk's record, the docket sheet indicates that threat to society. Vernon's Ann.Texas C.C.P. art. on March 3, 2010, Ralph Gonzalez was appointed to represent 46B.004. the appellant, that a grand jury indicted the appellant for capital murder on April 5, 2010, and that, on May 17, 2010, Cases that cite this headnote Gonzalez filed a motion to have the appellant evaluated for his competency to stand trial. The trial court immediately granted that motion, and the appellant was promptly evaluated by two forensic mental-health experts: psychologist Dr. Karen Attorneys and Law Firms Gollaher and psychiatrist Dr. David Axelrad. Gail Kikawa McConnell, Assistant District Attorney, Richmond, TX, for Appellant. I. The Facts Robert A. Morrow, Attorney at Law, The Woodlands, TX, Lisa C. McMinn, State's Attorney, Austin, for the State. A. The Initial Competency Reports Opinion Dr. Gollaher conducted the first evaluation on May 18th and 19th, 2010. In her report, Gollaher notes that the appellant OPINION “reported the belief that his wife had been having an affair for many years with the Mayor of Kendleton, Texas [,]” but PRICE, J., delivered the opinion of the Court in which that “she had repeatedly denied any extramarital relationship, WOMACK, JOHNSON, COCHRAN, and ALCALA, JJ., calling him paranoid.” Gollaher also noted that the appellant's joined. recent jail records “appear to refer to possible delusional *1 The appellant was convicted of the intentional murder of thinking[.]” While the appellant denied any such delusional more than one person during the same criminal transaction, thinking during the evaluation, Gollaher nevertheless noted namely, his wife and his mother-in-law, which is a capital “several statements” that he made to her “that raise[d] the

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possibility of paranoid thinking.” Moreover, “he reported the had not yet seen the experts' competency reports, he had jail psychiatrist prescribed him Risperdal but he has not taken been told that Gollaher deemed the appellant competent to his medications because he does not believe he needs it.” 6 stand trial and that Axelrad had found him to be “perfectly Gollaher did not diagnose the appellant as suffering from any fit.” Even so, Gonzalez informed the trial court that “[w]e're particular thought disorder. She did not believe his possible having difficulty with [the appellant] accepting a lot of paranoid thoughts would “undermine his ability to participate things that happened. And one of the biggest things is his in the court procedures.” She also concluded that the appellant family, his children. There is a little bit of disconnect right was “capable of communicating events in an understandable now.” Nevertheless, the appellant's counsel did not request manner and can report his state of mind.” It was her ultimate any further proceedings at this time with respect to his professional opinion that the appellant was, as of that time, competency to stand trial. competent to stand trial. More than four months later, on November 9, 2010, counsel *2 Dr. Axelrad evaluated the appellant a month later, for the appellant filed a notice of intent to take the depositions on June 14, 2010, also ultimately concluding that he was of two of the appellant's children. On November 22, 2010, in open court, at the beginning of a hearing on pretrial motions, competent to stand trial. In his report, 7 however, Axelrad the appellant personally informed the trial court that he had acknowledged that the appellant “is an individual who may filed a grievance against his lawyers and wanted a new have a mental illness and the diagnosis may be a paranoid “defense team” appointed. He complained that he did not disorder.” Although he did not note any impairment in the wish to have his children deposed and that his lawyers had appellant's thought process or content, he nevertheless found not explained to him the purpose behind the various pretrial the appellant to be “mildly impaired” in his abilities: 1) to motions on file. Defense counsel denied that they had failed disclose to counsel pertinent facts, events, and states of mind; to explain the motions and asserted that they needed to depose 2) to engage in a reasoned choice of legal strategies and the children to obtain discovery and for other undisclosed options; and 3) to engage with counsel. From the recent purposes in the service of their client's best interests. The trial jail records, Axelrad noted that the attending psychiatrist court denied the appellant's request for new lawyers. had found the appellant to be “exhibiting some paranoid ideation, and he does appear to be delusional.” The appellant *3 Another ex parte conference occurred in chambers on also exhibited “some paranoid ideas” and “mild paranoid functioning” during Axelrad's evaluation. The appellant December 10, 2010, 8 the same day that the deposition of the reported to Axelrad that he had “lost confidence in his appellant's children was originally scheduled. The appellant's attorney, and [he did] appear to have significant problems counsel revealed that the relationship between the appellant in his relationship with his current attorney, Mr. Gonzalez.” and Gonzalez had deteriorated to the point that the appellant The appellant would not discuss the circumstances of the had physically threatened Gonzalez. Gonzalez related: offense with Axelrad; consequently, Axelrad was “unable In my thirty years, I've been threatened to address, at this time, as to whether [the appellant] had a on several occasions but never as paranoid disorder. In the event he has a paranoid disorder, adamantly and never [as] menacingly this may be contributing to the problems he is experiencing as this guy. I believe that no matter with his attorney.” With this caveat, Axelrad concluded that what I tell him, if I could tell him the appellant was nonetheless competent to stand trial—and that he would be getting out of jail even that he was competent “to enter into plea negotiations tomorrow and nothing would happen concerning his alleged offense in the event that he and his to him, he would not believe me. There attorney can develop an effective working relationship.” is nothing that I can do to convince that man that I have anything of benefit to do for him or that I can do for him. B. Pretrial Proceedings Because the attorney/client relationship had become so The first pretrial hearing on record was an ex parte conference “untenable,” Gonzalez filed a motion to withdraw. That same that took place in chambers on June 23, 2010. By this day, in open court, the appellant personally reiterated that time the trial court had appointed a second attorney, Pat he was “opposed to the depositions” of his children and did McCann. Gonzalez reported to the trial court that, while he not “want Mr. Gonzalez on my case.” The trial court granted

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Gonzalez's motion to withdraw. Because Gonzalez had been rest of the Defense team are working with the State to ensure the member of the defense team who had prepared to conduct his conviction, we may need to revisit competency at some the depositions, they were rescheduled. On December 14, point with you.” The trial court responded that “we can do a 2010, the trial court appointed Tyrone Moncriffe to replace competency exam while we are doing the voir dire.” Gonzalez and, on January 5, 2011, the trial court granted the defense a trial continuance until April 18, 2011, with final pretrial motions to be heard on April 11, 2011, in order to give C. Voir Dire Moncriffe sufficient time to familiarize himself with the case. Voir dire was set to commence the next week, on April The April 11th hearing began with a renewal of the appellant's 18, 2011. In the interim, McCann filed a “Motion for a efforts to replace his trial counsel. The trial court had received Contested Competency Hearing.” Attached to this motion “letters” by fax from a woman purporting to be the appellant's were an affidavit from Moncriffe, dated April 7, 2011, sister that asked the trial court to “fire[ ]” the appellant's and a competency evaluation from a neuropsychologist, trial counsel. Because the faxed copies of the letters did Dr. Shawanda Williams–Anderson, dated April 12, 2011. not bear his signature, however, the appellant refused to Moncriffe explained that it was part of the defensive strategy “endorse” them as his. The trial court therefore declined to depose the appellant's children and then agree for the State to “take them up[.]” McCann told the trial court that “we to use the deposition testimony in lieu of live testimony at are doing everything possible to prepare for this trial; but trial, since, in their estimation, “the impact of [the appellant's] [the appellant] has not agreed to speak with us on many children describing their mother and grandmother's horrible occasions[.]” [deaths] was much more damaging live than by deposition.” Accordingly, McCann had conducted the depositions on Later during the same pretrial hearing, the trial court returned April 1, 2011, while Moncriffe and the appellant watched by to the issue of the appellant's displeasure with his trial video link from an adjoining room. The appellant watched counsel, directly asking the appellant whether he wished to with “a bewildered look on his face.” Afterwards, he yelled represent himself. The appellant unequivocally responded, at his lawyers, accusing them of making his children testify “No.” He complained, however, that trial counsel “have not against him, in conspiracy with the District Attorney. “He shown me any evidence.” He acknowledged that they had cannot assist his defense team,” Moncriffe concluded, “nor played for him a recording of the 911 call in which his does he have a rational understanding of the magnitude of daughter had reported the murders, but he complained that these proceedings. He seems to have one train of thought he had not been able to hear it. McCann answered that the and he disregards all other rational thoughts completely.” appellant had been provided everything except for the actual Dr. Williams–Anderson evaluated the appellant on April 12, physical evidence, including offense and autopsy reports, 2011. She concluded that, “[b]ecause of the seriousness of and that, not only had the appellant been able to hear the [the appellant's] charges, his unwillingness to participate in 911 recording, it had made him weep. McCann agreed to his defense, and his extreme distrust of every member of his make all the evidence available for the appellant again. The team, his competency to stand trial is questionable.” appellant then complained that his lawyers had not contacted the Mayor of Kendleton or conducted any paternity testing At a hearing on the motion for a formal competency hearing, to determine whether the Mayor was the real father of the which convened on April 18th, the first day of voir dire, appellant's youngest child. McCann explained that they had in McCann argued that the appellant's “paranoia has grown fact interviewed the Mayor but that the result of any paternity to the level of delusions[.]” “It's become an issue to the testing was, in any event, “sadly not legally relevant.” The point where [the appellant] actively appears to believe that trial court informed the appellant that it would not remove we are working against his own interests, and the delusion trial counsel from the case and suggested that he “start seems complete and full-blown.” McCann explained that the cooperating with them.” appellant's

*4 Later that same day, another ex parte conference took attitude has gotten worse in the last place in chambers. McCann informed the trial court that several weeks, that we have spent “we're going to attempt to go speak with him; but at some numerous hours with [him] over the point, based upon his clear paranoia that somehow I and the last several days since the hearing on

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the 11th; and we have all come to the status has changed since the last time a competency hearing conclusion that at this point he is— occurred.” 10 Afterwards, “I'll do an initial evaluation about although he interacts with us on this whether [the appellant's] status has changed.” Accordingly, plane of reality, he frankly is thinking the trial court ordered Dr. Connie Almeida, a licensed and living in another one that does clinical psychologist and Director of the Fort Bend County not appear to comport with either the Behavioral Health Services, to evaluate the appellant, with evidence we've shown him, our views an emphasis on whether he was “able to rationally assist his of the case, or anything that we can lawyers in the defense of his case.” determine as a group as rational. Dr. Almeida filed a report on May 19, 2011, and appeared *5 Responding to the prosecutor's argument that simple at a hearing the next day, on May 20th. She testified that the disagreement between a lawyer and his client does not raise appellant would not cooperate with her several attempts to an issue of competency, and the trial court's request that evaluate him, and that the best she could do was to report her McCann “focus on the fact that we've already conducted the impressions from a half-hour conversation she had managed competency evaluation in this case[,]” McCann asserted: to have with him on May 17, 2011, during which “[h]e did I have defended serial killers and express disagreement with some of the strategies and ‘tactics' people who have killed their whole of his defense team.” As of that date, the appellant was not families, and this case is challenging taking any psychotropic medications, nor did the behavioral even my ability to ... see how this health staff at the jail deem such medications presently could not be originating from anything warranted. From all this, Almeida was unable to draw any but mental illness. * * * It has conclusions about the appellant's competency to stand trial. now gotten to a place ... where [the But she believed there to be “no significant changes in his appellant's] version of the reality of functioning” since he was initially evaluated for competency the facts that he deals with day-to-day, by Drs. Gollaher and Axelrad the previous summer. She could whatever evidence is shown, whatever not say “definitively” that the appellant was not paranoid. discussions we have, comes from a place of such deep rooted paranoia that *6 On cross-examination by the prosecutor, Almeida opined I can no longer believe it is simply a that, “based on my limited interaction with him, I would say difficult person that I'm dealing with. that he would have a rational and factual understanding of the proceedings against him.” 11 She also acknowledged an Given the competency evaluations that had already been observation she had made in her written report that “there conducted by Drs. Gollaher and Axelrad, the trial court is no current evidence to substantiate a delusional or other found that what Dr. Williams–Anderson characterized as psychiatric disorder.” Nor was she aware of “any behaviors the appellant's simple “unwillingness to participate in that warrant a psychiatric intervention” since the appellant his defense” provided insufficient grounds to conduct a had been jailed. She nevertheless stood by her position that competency hearing, and it therefore denied the motion. she was unable to reach a determination of her own whether the appellant had a present ability to assist his counsel, as McCann broached the subject of competency again about a the trial court had requested. The best she could say was week into voir dire when, on April 26, 2011, he complained that she perceived “no significant changes in [his] emotional that, “although I have attempted to engage with my client in or cognitive functioning since” the earlier evaluations that regards to his opinions, for whatever reason, it appears to have would adversely impact his competency to stand trial. been shut down.” He urged the trial court take up his motion for a competency hearing again. The trial court advised him After hearing argument from the parties, the trial court to file a new motion with accompanying affidavit. McCann denied the motion for a formal competency hearing. While apparently did, 9 because a renewed hearing was held on acknowledging that Drs. Gollaher and Axelrad had made April 27, 2011. While persisting in its refusal to order a “notation of paranoia” in their initial competency reports, formal competency hearing, the trial court at this time decided the trial court observed that they had not found the “to direct the Court's behavioral mental health director to appellant's paranoia to be “sufficient to meet the statutory do an evaluation to determine whether [the appellant's] guidelines” for incompetency. The trial court opined that

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the appellant's evidence of incompetence, measured against narrow his inquiry, McCann asked the appellant whether he those “statutory guidelines,” “does not call for secondary had something to tell the jury about the night of the murders. competency evaluations unless there's a clear change in [the After some additional wrangling, the appellant was allowed appellant's] whole aspect that raises a clear concern.” The to describe in narrative fashion what he had done during only such change that the trial court could see was the the day of December 26, 2009, before the murders. As his appellant's “failure to cooperate with [counsel] and that's his narrative approached the time of the murders, however, the choice to make [.]” Even so, the trial court believed this had trial court directed McCann to ask another question. At a been enough to justify appointing Almeida, in an abundance bench conference, McCann explained that he was ethically of caution, “to explore this area to see if there was such constrained from asking more specific questions, and the a change that it would require a full competency hearing.” prosecutor speculated that McCann “can't do it because he Although Almeida was unable to reach a conclusion whether knows it's a lie.” 12 McCann was then allowed to ask the the appellant's failure to cooperate with his counsel rendered appellant whether he had “something else [he] wanted to him incompetent, the trial court reasoned, her inability was add[.]” At that point, the appellant vehemently denied having itself the product of the appellant's choice not to talk to her ever “put [his] hands on [his] wife[,]” and claimed that his about his case. “That is a reasoned decision on his part. Does daughter had said as much during a portion of her deposition it reach to the level of incompetency, there's nothing to show testimony “that y'all recorded over.” When the prosecutor's today that it does that.” hearsay objection was sustained, McCann asked the appellant to describe the events after December 27th, and the appellant was once again allowed to narrate. He was not specifically D. Trial on the Merits asked on direct examination about the killings themselves.

Trial on the merits began on May 25, 2011. During opening On cross-examination, the appellant denied having threatened statements, McCann informed the jury that the defense his first attorney, Gonzalez. He claimed that Gonzalez expected the evidence to show that the appellant killed his withdrew from the case because the appellant had tried to put wife in a “jealous rage,” but that the killing of his mother- a stop to the depositions of his children. The appellant further in-law, with whom the appellant had always gotten along, maintained that his children were coerced into giving the occurring in the close quarters of the upstairs hallway, deposition testimony against him. At this juncture, McCann had not been perpetrated intentionally—that the appellant, renewed his motion for a competency examination, but the while certainly guilty of “two terrible horrible crimes[,]” trial court denied it, observing that “[t]here's nothing that was not guilty of a capital offense. Along the way, McCann I have been shown that changes anything that I have been explained to the jury that the appellant “doesn't like me shown before.” The appellant next denied that his attorneys very much.” Later, he observed: “And if you look at him were “trying to save [his] life[.]” When the prosecutor asked there, he's a large man, as he sits there scowling at me. the appellant whether McCann had been misleading the jury Because he can't admit what he did, to himself or anybody panel during his opening statement, the following transpired: else.” The ensuing defensive strategy was to acknowledge that the State's evidence showing that the appellant was A I asked him, before he made his statement, what—what I responsible for the two murders was at least substantial, if not was curious about what exactly was he going to make in his overwhelming, but to try to engender a reasonable doubt in opening statement. And the reason I said that—the reason the jurors' minds whether he harbored the requisite culpable I asked that question is because that we weren't talking. intent with respect to the death of his mother-in-law to satisfy They weren't coming to see me. They didn't want to hear the statutory criteria for a capital offense. anything I had to say about the things that I was saying about the mayor and all the allegations that I was saying. *7 On May 27th, the Friday before Memorial Day, the They wouldn't investigate it. They kept bringing me—I appellant exercised his right to testify in his own behalf, have proof of everything that I'm saying. against the advice of counsel. After having the appellant Q Do you know they talked to the mayor? identify photographs of his children, wife, and mother-in-law, McCann simply asked him whether there was “something A That's what they told me. you would like to tell this jury[.]” The prosecutor objected that the question called for a narrative response. Instructed to Q I know. Everybody did.

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*8 A And I've, you know—I looked at the thing. He was They have seriously neglected my case. They have ignored obviously lying. the information I have provided them for my defense. Witnesses for my defense haven't been contacted that I've Q Do you know these two gentlemen have tracked given them. everything you have ever said down? He made up—he came up with an opening statement when A No. I had—signed an affidavit or even told him that I—that I killed anyone. So where did he get this opening statement Q And it comes to one conclusion: You killed those two from, that it's an accident? He has not defended me. women. McCann reminded the trial court that he had recently A I didn't kill anyone. renewed his request for a competency hearing based upon the Q And they're trying to save your life. You understand that? appellant's paranoia. Directed to respond specifically to the appellant's complaints, McCann replied: A I didn't kill anyone. We have, during the course of this investigation—Without The appellant further testified that his daughter had made a going into too much client confidence, Mr. Turner has mistake to identify him as the killer. He explained that he fled indicated that there were entourage members of the mayor the state after the killings because the Mayor had threatened of Kendleton who might fit his description as well as other him and had sent two unidentified men to break into his individuals whom he might have hired who was part of house. Asked whether his lawyers were part of this apparent his hang-around crew. We have found no such individual “conspiracy” against him, the appellant replied that they were who would refute the 100 percent-certain eyewitness not “going out and getting the evidence that I was talking identification of his own children during the incident. about, and I was wondering why.” The prosecutor wrapped up his cross-examination of the appellant by asking him: THE COURT: Mr. Turner testified that he was afraid of certain individuals and indicated that that was part of the Q All right. Let me ask you this way: Is there any way, Mr. reason why he fled. Did you pursue that investigation? Turner, you want to change any of your story right now and beg for forgiveness from this jury at all? *9 MR. MCCANN: We have located no such individuals, either as a friend of the mayor of Kendleton nor any A I didn't kill anyone. indication that the mayor of Kendleton was anywhere near his home on the night that he mentioned, nor that he has any Q I know. Do you know how dangerous that makes you? proclivity or, indeed, any real relationship with his wife. That doesn't mean that Mr. Turner didn't think that there McCann's objection was sustained, but his motion for mistrial was one, but at the same time, we found no such indication. was denied. On redirect, McCann simply asked: THE COURT: Mr. Turner has raised the issue that you Q Mr. Turner, in your mind, all that drivel was true, wasn't have not pursued the theory that it was an accident. Would it? you respond to that allegation? A It is true. MR. MCCANN: I understood him to mean that he rejected Shortly after, the defense rested and both sides closed. the theory that it was an accident because his testimony indicated he was not there. The only plausible defense that On Tuesday, May 31st, the morning that final arguments for Mr. Moncriffe and I could see coming from the evidence the guilt phase were set to begin, the appellant unequivocally that we examined is that the second killing—while the first announced that he was “firing my defense team and killing may have been an act of passion between a jealous representing myself. I should be able to represent myself at husband and wife, the second killing would appear to have any stage of this trial. I have that right.” 13 When the trial been unintended. At least there was no indication of any court asked why, the appellant asserted: quarrel or violence between Mr. Turner and Betty Jo.

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*10 [1] [2] A criminal defendant who is incompetent may And given the circumstances and the placement of the not be put to trial without violating due process. 16 “It has second floor, it is conceivable that he did not intend long been accepted that a person whose mental condition is that killing and that killing was, in fact, either accidental such that he lacks the capacity to understand the nature and or perhaps done in a reckless manner that would have object of the proceedings against him, to consult with counsel, indicated a lesser charge might be available or that we and to assist in preparing his defense may not be subjected to could argue plausibly that that killing was not intentional. trial.” 17 The constitutional standard for competency to stand Based upon these representations, the trial court summarily trial asks whether the defendant has a sufficient present ability denied the appellant's demand to “fire” his trial counsel and to consult with his lawyer with a reasonable degree of rational represent himself. Closing arguments began soon after. understanding and whether he has a rational as well as factual understanding of the proceedings against him. 18 Due process The prosecutors used their opening remarks to highlight the also mandates state procedures that are adequate to assure that appellant's claim that his children had mistakenly identified incompetent defendants are not put to trial. 19 To that end, him and to pound away at his failure to take responsibility. 14 our statutory scheme has codified the constitutional standard For his part, McCann described the appellant's behavior this for competency to stand trial and has elaborately described way: the circumstances that require, and procedures for making, a determination of whether a defendant is competent to stand When I got up and talked to you in opening, I told you that my trial. 20 client, Albert James Turner, still hasn't accepted what happened because on that night, he snapped. You actually A. Substantive Standard got to watch what he thinks is the truth because he literally cannot accept what The Texas Legislature has adopted the constitutional standard happened. In his mind, very sadly, it is for competency to stand trial in Article 46B.003(a) of the the truth. Texas Code of Criminal Procedure. 21 The appellant in this case does not contend that he lacked at least a factual He then went on to urge the jury nevertheless to accept the understanding of the proceedings against him. There is defensive theory that the appellant had not intended to kill his no reason to doubt that he understood that his life and mother-in-law and, on that account, to find him not guilty of liberty were at stake and what roles the various participants capital murder. in the proceedings played. At issue is whether there was any substantive indication that he lacked either a rational The State argued in response that the wound inflicted on understanding of the proceedings or a present sufficient the appellant's mother-in-law was too severe to justify a ability to consult with counsel with a reasonable degree of finding that it was not intentionally inflicted. Along the way, rational understanding—or, as the trial court in this case the prosecutor once again emphasized the absurdity of the ordered Dr. Almeida to assess, whether he was “able to appellant's testimony, reminding the jury that even McCann rationally assist his lawyers in the defense of his case.” had characterized his story as “drivel.” Later, during their closing arguments at the punishment phase of trial, the State [3] The Legislature apparently regards a defendant's similarly relied upon the appellant's implausible guilt-phase capacity to rationally assist in the preparation and execution testimony to argue that the remorselessness he displayed of his defense to be indispensable to a defendant's competency in the courtroom and from the witness stand constituted to stand trial. We may infer this from the fact that it compelling evidence that should convince the jury that he has directed that forensic psychologists and psychiatrists would constitute a future danger to society. 15 appointed by the trial court to perform competency evaluations should specifically consider, among other things: 1) the defendant's “capacity ... during criminal proceedings II. The Law to ... engage in a reasoned choice of legal strategies and options;” as well as 2) “the impact of the mental illness or mental retardation, if existent, on the defendant's capacity to

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engage with counsel in a reasonable and rational manner Under our current statutory scheme, 29 any “suggestion” 22 [.]” These legislative criteria for competency contemplate of incompetency to stand trial calls for an “informal a defendant who is at least minimally able to interact with his inquiry” to determine whether evidence exists to justify a trial counsel in a “reasonable and rational” way (even if they formal competency trial. 30 In 2009, this Court held that do not necessarily agree) in formulating decisions how most evidence that a “suggestion” of incompetency sufficient to effectively to pursue his defense. trigger an informal inquiry was the same as the bona fide doubt standard from the previous statutory regime. 31 The [4] [5] Other jurisdictions have construed the Legislature has subsequently rejected the bona fide doubt constitutional standard for competence to stand trial standard for purposes of Article 46B.004, but the amendment consistent with this understanding. Various courts have by which this was accomplished did not become effective declared defendants to be incompetent under the until September 1, 2011, several months after the appellant's constitutional standard upon findings that they suffered from mental illnesses causing paranoid delusions that impacted trial. 32 In any event, here, at least as of May 20, 2011, when their perception of reality in ways that adversely affected voir dire was interrupted for the hearing at which Dr. Almeida their ability to rationally comprehend the proceedings against testified, the trial court was obviously persuaded that a bona fide doubt did exist as to the appellant's competency. them or interact rationally with trial counsel. 23 And we think there is particular cause for concern when a defendant's [8] The question therefore becomes whether, in light of mental impairment directly touches upon certain fundamental what became known to the trial court by the conclusion decisions that the criminal justice system reserves for him to of this informal inquiry, it should have conducted a formal make personally—albeit after “engaging” meaningfully with competency trial. The answer depends upon whether “some counsel—such as whether to testify in his own defense. 24 evidence from any source” had arisen by that time “that would Precisely because the defendant retains ultimate authority support a finding that [the appellant] may be incompetent to over these decisions, it is critical that he be able “to stand trial.” 33 In making this determination, a trial court must consult with counsel with a reasonable degree of rational consider only that evidence tending to show incompetency, understanding” about them. 25 “putting aside all competing indications of competency, to find whether there is some evidence, a quantity more than *11 [6] [7] This is not to imply that a defendant's mental none or a scintilla, that rationally may lead to a conclusion illness plus his failure to communicate with counsel will of incompetency.” 34 If so, then “evidence exists to support a invariably or necessarily add up to a finding of incompetence. finding of incompetency,” and the statutory scheme requires The fact that a defendant is mentally ill does not by itself the trial court to conduct a formal competency trial. 35 mean he is incompetent. 26 Nor does the simple fact that he obstinately refuses to cooperate with his trial counsel. 27 [9] [10] Should the formal competency trial result in Indeed, even a mentally ill defendant who resists cooperating a finding of competency, the trial court is not obliged with his counsel may nevertheless be found competent if the to revisit the issue later absent a material change of manifestations of his particular mental illness are not shown circumstances suggesting that the defendant's mental status to be the engine of his obstinacy. 28 But when a defendant's has deteriorated. 36 However, especially when there has been mental illness operates in such a way as to prevent him a suggestion of incompetency but no formal adjudication from rationally understanding the proceedings against him or of the issue, due process requires the trial court to remain engaging rationally with counsel in the pursuit of his own best ever vigilant for changes in circumstances that would make interests, he cannot be made to stand trial consistent with due a formal adjudication appropriate. 37 In the instant case, we process. Evidence that raises this possibility necessitates an find no fault in the trial court's failure to conduct a formal informal inquiry, and if that inquiry reveals that the possibility competency trial following the initial evaluations by Drs. is substantial, a formal competency trial is required. Gollaher and Axelrad, since they deemed the appellant to be competent. After all, the appellant's trial counsel made no request for a formal competency trial at that time. But as of B. Procedure May 20, 2011, when the trial court concluded its informal inquiry, there was some evidence to support a rational finding

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of incompetence, and, for the reasons that we describe below, seems to have one train of thought and he disregards all other the appellant's request for a formal competency trial should rational thoughts completely.” The appellant's paranoia had then have been granted. progressed to the point that, if the representations of his own lawyers are to be credited, he believed that they were openly conspiring with the prosecutors to secure his conviction. He flatly refused to communicate with them during the voir dire III. Analysis proceedings. *12 Shortly after indictment in April of 2010, and before the appellant was afforded much of an opportunity to interact We think the preceding information constitutes at least with Gonzalez, his first-appointed trial counsel, both Dr. some evidence that would support a rational finding that Gollaher and Dr. Axelrad deemed him competent to stand the appellant lacked the capacity to “engage” with his trial trial. The record does not show that the appellant had a history counsel rationally or to make rational choices with respect of mental illness. Nevertheless, both of the competency to his legal strategies and options. In finding otherwise at reports reflect the substantial possibility that he was suffering the conclusion of the informal inquiry on May 20, 2011, the from paranoia that may have been the product of “a paranoid trial court made two mistakes. First, the trial court focused disorder,” and that he was apparently exhibiting delusions. erroneously on evidence of competency rather than evidence Gollaher expressly found that the appellant had a factual of incompetency, relying upon the ultimate conclusions understanding of the proceedings and could “communicate of Drs. Gollaher and Axelrad, as well as Dr. Almeida's events in an understandable manner and can report his subsequent opinion that the appellant's cognitive functioning state of mind.” But her report did not speak specifically to had not significantly changed in the interim. But Almeida whether his condition would adversely affect his capacity was unable to say that the appellant was competent to either to “engage with counsel in a reasonable and rational assist counsel in his defense, and both Gollaher and Axelrad manner[,]” or to “engage in a reasoned choice of legal observed signs of paranoid delusions that would at least minimally support a finding that the appellant suffered from strategies and options[.]” 38 Axelrad's report did speak to a mental disorder that impaired his ability to participate those capacities and, in fact, he found the appellant to rationally in the preparation and presentation of his defense. be “mildly impaired” with respect to both. Axelrad noted The interactions between the appellant and his trial counsel in that, “[i]n the event [that the appellant] has a paranoid the intervening months constituted substantial evidence that disorder, this may be contributing to the problems he is Axelrad's nascent concerns about the appellant's capacity to experiencing with his attorney.” Notwithstanding the experts' consult rationally with his attorneys were subsequently borne ultimate conclusions that the appellant was competent, the out. There was some evidence that would rationally support a trial court was effectively put on notice of the need to maintain finding of incompetency to stand trial, notwithstanding other vigilance to assure that the appellant's due process rights were evidence to the contrary. preserved.

*13 [12] Second, the trial court erred to the extent that it [11] Barely over a month after the initial evaluations, denied the appellant's request for a formal competency trial the appellant's attorneys were already experiencing “a little on the grounds that the appellant failed to demonstrate any bit of a disconnect” with him. By November of 2010, the “change” of status since the earlier findings of competency appellant had filed a grievance against his lawyers and by Gollaher and Axelrad. There was no adjudication of requested a new “defense team.” In December, Gonzalez's the competency issue in the summer of 2010 following continued representation of the appellant became “untenable” their evaluations—not even an informal inquiry to decide after the appellant threatened him with physical violence whether there was sufficient evidence at that time to invoke over their disagreement with the defense strategy to depose a formal competency trial. Thus, there was no prior judicial the appellant's children. By April of 2011, it began to competency determination to justify a requirement of a emerge that the appellant's displeasure with trial counsel change in circumstances. Moreover, even had there been involved more than the depositions alone; he was also upset some previous judicial finding of competency, the trial court that trial counsel were not pursuing a sufficiently vigorous was mistaken to conclude that no new circumstances existed investigation into his apparently delusional—and, in any to merit a second look. By May of 2011, there had arisen new event, clearly irrelevant—claim that the Mayor of Kendleton evidence in the form of the appellant's obviously irrational had sired his youngest child. According to Moncriffe, “He

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belief that his ongoing delusion with respect to the Mayor erred in failing to grant the appellant's request for a formal of Kendleton somehow provided him with a defense to competency trial under Article 46B.005. prosecution for capital murder that was preferable to the approach that his trial lawyers urged him to pursue. That the appellant persisted in this delusion-fueled belief against DISPOSITION the emphatic advice of counsel, together with the earlier suggestions that he suffered from a paranoid disorder, was Accordingly, we sustain the appellant's ninth point of error, enough to raise the likelihood of incompetency to a level abate the appeal, and remand the cause to the trial court. beyond that which is evinced by a mere dispute between On remand, the trial court shall first determine whether it an ordinarily obstinate defendant and his legal counsel over is presently feasible to conduct a retrospective competency plausible trial strategies. It is at least some evidence to support trial, given the passage of time, availability of evidence, a rational finding that, because of mental illness, the appellant and any other pertinent considerations. 42 Should the trial was unable to engage rationally with his lawyers and was court deem a retrospective competency trial to be feasible, therefore incapable of participating rationally in his own it shall proceed to conduct such a trial in accordance defense. 39 Most critically, he may well have been incapable with Chapter 46B, Subchapter C, of the Code of Criminal of making a rational, non-delusional decision with respect Procedure. 43 Regardless of whether the trial court deems a to whether or not to accept his trial counsel's advice not to retrospective competency trial to be feasible, the record of the testify. 40 proceedings on remand shall then be returned to this Court for reinstatement of the appeal. 44 We hasten to emphasize the limited scope of our holding today. This is not a case in which there is some evidence of mental illness but no evidence from which it may reasonably be inferred that the defendant's mental illness renders him KELLER, P.J., filed a dissenting opinion in which MEYERS, incapable of consulting rationally with counsel. Nor is it KEASLER, and HERVEY, JJ., joined. a case in which there is some evidence that the defendant KELLER, P.J., filed a dissenting opinion in which MEYERS, obstinately refuses to cooperate with counsel but nothing KEASLER and HERVEY, JJ., joined. from which to rationally infer that his obstinacy is fueled *14 Appellant, who has no history of mental illness, by mental illness. It is not even a case in which there is understands what he is accused of and the nature of the some evidence of mental illness, some evidence of obstinacy, proceedings, and he understands who his attorneys are and but ultimately no rational basis to infer that the obstinacy that they are tasked with representing him. His refusal to is a product of the mental illness. None of these scenarios cooperate with his attorneys does not, in my view, make him would compel a formal competency trial. Instead, this case incompetent to stand trial. The Court maintains, however, presents one of the relatively rare instances in which there that there is some evidence that appellant is incompetent to is at least some evidence from which it may rationally be stand trial as a result of paranoid delusions about his attorneys' inferred not only 1) that the defendant suffers some degree of motives and other aspects of the case. I disagree. debilitating mental illness, and that 2) he obstinately refuses to cooperate with counsel to his own apparent detriment, but Under our statute a person is incompetent to stand trial if he also that 3) his mental illness is what fuels his obstinacy. does not have: Whenever a trial court's informal inquiry establishes that there is some evidence that could rationally support all three of (1) sufficient present ability to consult with the person's these inferences, it should conduct a formal competency trial. lawyer with a reasonable degree of rational understanding; or *14 Therefore, bearing firmly in mind that the standard for requiring a formal competency trial is not a particularly (2) a rational as well as factual understanding of the onerous one—whether, putting aside the evidence of proceedings against the person. 1 competency, there is more than a scintilla of evidence that would support a rational finding of fact that the accused is No one disputes appellant's competence under part (2); that 41 is, no one suggests that he lacks a rational as well as factual incompetent to stand trial —we hold that the trial court understanding of the proceedings against him. The issue

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before us is his competence under part (1), whether he has take), Dr. Axelrad nevertheless concluded that appellant “is sufficient present ability to consult with his lawyer with a presently mentally competent to stand trial.” reasonable degree of rational understanding. In April of 2011, appellant was referred by his attorneys to The trial court had before it three types of evidence relevant Dr. Shawanda Williams–Anderson. She concluded, “Because to this determination: (1) expert evaluations, (2) statements of the seriousness of Mr. Turner's charges, his unwillingness by appellant's attorneys, and (3) appellant's own statements. to participate in his defense, and his extreme distrust of None of this evidence shows that appellant lacked the every member of his team his competency to stand trial is sufficient present ability to consult with his attorneys with a questionable.” She further stated that appellant is “making reasonable degree of rational understanding. dire decisions that are detrimental to his defense and has understanding of doing so. Thus his mental capacity to stand trial is not the source of contention, but his ability to participate in the legal process was closely evaluated.” She A. The Experts concluded that, “To date, his participation and involvement Appellant was first evaluated by Dr. Karen Gollaher in have had adversarial effects and hindered the defense team May of 2010. He largely cooperated with the competency in every way. Therefore, Mr. Turner cannot be expected to evaluation but would not discuss his actual actions at the comply with his team during the progression of his defense time of the crime in order to protect his Fifth Amendment including trial. Under Article 46B, Mr. Turner's actions would rights. Although appellant reported some possible paranoid deem him incompetent to stand trial.” thoughts, Dr. Gollaher concluded that “these do not undermine his ability to participate in the court procedures.” Essentially, Dr. Williams–Anderson conceded that appellant With respect to competence to stand trial, Dr. Gollaher found: had the mental capacity to stand trial but concluded that appellant distrusted the defense team and was acting in a *15 Mr. Turner knows the way detrimental to his defense. But Dr. Williams–Anderson's charge against him and a possible focus on appellant's motives and actions is beside the point. punishment. He understands the role Appellant had the mental capacity to work with the members of various courtroom person[ne]l, the of his defense team but chose not to work with them because available pleas and the plea bargaining he distrusted them. Dr. Williams–Anderson's conclusion that process.... [H]e was concerned that his appellant's “actions would deem him incompetent to stand version of events was heard by the trial” is faulty because a person's actions can never render him public and he discussed issues that incompetent to stand trial. It is the person's mental ability that might be considered mitigating. This matters. suggests that he does have an interest in defending himself and may not be Finally, at the urging of defense counsel, the trial court as indifferent as he presents himself to appointed Dr. M. Connie Almeida to evaluate appellant in be. He is capable of communicating May of 2011. Dr. Almeida said that she could not reach events in an understandable manner a professional opinion regarding appellant's competency to and can report his state of mind. stand trial based on her interview “because of his limited cooperation.” However, based on her review of records, Dr. Gollaher ultimately concluded that, within a reasonable interview with jail staff, and her limited interview with degree of certainty, appellant was currently competent to appellant, it was her professional opinion that appellant's stand trial. “functioning has not changed significantly since his previous assessments of competency” by Dr. Gollaher and Dr. Axelrad. In June of 2010, appellant was evaluated by Dr. David “It is my opinion,” she stated “that there have been no Axelrad. Dr. Axelrad said that appellant “may have a mental significant changes in Mr. Turner's emotional or cognitive illness and the diagnosis may be a paranoid disorder” functioning since the time of these evaluations (6/1/10 and but that appellant was unwilling to disclose the nature of 6/18/10) that would adversely impact his competency to stand the relationship with his wife immediately preceding the trial at the present time.” When questioned at a hearing, Dr. commission of the murders. Though appellant might benefit Almeida stated that she could not definitively say that he from psychiatric medications (which he was refusing to

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was not paranoid and that such condition was not interfering to us to be a recalcitrant client and it has—has clearly, to us, with his ability to rationally assist his defense. But she also gotten beyond that.” affirmed, “There is no current evidence to substantiate a delusional or other psychiatric disorder.” McCann remarked that, “I've never been in a place where the client has withdrawn to this degree.” McCann stated that he believed there had been a change, though perhaps not witnessed by the jail, but a noticeable change in appellant's B. The Attorneys demeanor and behavior over the last several months. McCann *16 Attorneys Tyrone Moncriffe and Patrick McCann urged the trial court “to give us a chance to sit there and flesh executed affidavits, but these affidavits were not directly this out during a competency trial, and even if necessary, to introduced into evidence before the trial court. Some of appoint Mr. Turner other counsel and allow Mr. Moncriffe the content of these affidavits was introduced through and I to testify and subject us to cross.” Dr. Almeida's testimony. Dr. Almeida summarized these affidavits as expressing the concern that appellant was I believe an attorney's statements about his client's mental accusing counsel of coercion, hiding and misusing state can, in appropriate circumstances, raise an issue information, and not representing appellant's best interests. of incompetency without regard to expert testimony. But Counsel elicited testimony from Dr. Almeida that appellant sometimes an attorney's observations, especially with respect actually believed that the defense attorneys were coercing to delusions, are not alone a sufficient basis for concluding appellant's children into testifying against him and that that a defendant is incompetent. 2 Regardless, in the present McCann was part of a secret society that desired appellant's case, the defense attorneys specifically refrained from relying conviction. Dr. Almeida also recalled that Moncriffe had upon their own recollections as evidence. Their affidavits “indicated several instances of delusional comments and were not introduced into evidence and were addressed only as thinking.” It was partly based upon these affidavits that Dr. part of the basis for Dr. Almeida's opinions. But as explained Almeida said that she could not definitively say that appellant above, Dr. Almeida ultimately concluded, despite these did not have a paranoid condition that was interfering with affidavits, that there was no current evidence to substantiate his ability to assist his defense. But even considering those a delusional or other psychiatric disorder. And in making affidavits, Dr. Almeida nevertheless testified that appellant's statements to the trial court, McCann refrained from framing condition had not changed from the prior interviews and that those statements as testimony, which would have subjected there was no current evidence to substantiate a delusional or him to cross-examination. Instead, he invited the trial court to other psychiatric disorder. rely upon its own observations.

At the conclusion of the hearing, McCann argued that *17 Pointedly, the trial court articulated its own appellant's paranoia had impaired the defense because observations, concluding that there was no evidence of appellant was refusing to discuss any of the jurors incompetency, as follows: with counsel during voir dire. McCann conceded that “examinations in the year prior,” by Dr. Gollaher and Dr. I have watched Mr. Turner throughout Axelrad, “although they showed some of the problem, did not these several weeks that we've been at that time rise to the level, in their opinion of incompetency.” going through the jury selection. He But McCann said, “I can tell you that it has materially has been paying attention; he has been changed over the last several months, perhaps only because reacting. Your comment this afternoon of the proximity of the actual case that's brought this out, but about suspicion had a definite reaction it has—it has brought us to a complete standstill in our ability from Mr. Turner, so he's paying to determine or advise Mr. Turner about whether to testify or attention. He knows what's going on. whether to assist in any of this.” At that point, the prosecutor The fact that he will not talk to you, interjected, “I don't—I don't mind him arguing, but I've got to while that makes defense counsel's be able—to be able to cross-examine somebody if he's going representation difficult, it doesn't rise to give you new evidence, Judge.” McCann responded, “He's to the level of incompetency. The right. He's right, and I'll rephrase that. The Court has watched evidence just doesn't show that. And Mr. Moncriffe and myself struggle with what appeared at first the case cited by the prosecution in this

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He went out and got a—tried to get a doctor to rule me case recognizes that behavior alone incompetent. And the reason that he was trying to do that ... doesn't meet the requirements. It's one another defense attorney here tried to get legal guardianship part of a whole matter that has to be of me so they could file stuff on my behalf instead of getting looked at. I wanted to hear evidence my family members.” that would lead us to a full hearing, but I have not heard that; therefore, I'm *18 Appellant would not be the first guilty defendant to denying it. refuse to cooperate with his attorneys. Despite overwhelming evidence showing that he intentionally killed two people, Even if the attorneys' observations were taken as evidence, appellant wanted an acquittal. He concocted a far-fetched those observations do not indicate that appellant was story to attempt to show his innocence. It might not be incapable of consulting with his attorneys with a reasonable an exaggeration to say that his position was extremely degree of rational understanding. They show merely that shortsighted and wrongheaded, but that does not make he was unwilling to do so. No one disputes that appellant him incompetent. His attorneys refused to go along with understood what the proceedings were about and that he appellant's desired strategy. While I don't fault them for that, was mentally able to consult with the attorneys if he it is understandable that appellant would. The attorney-client so desired. That he lacked the desire to do so is not relationship had deteriorated to the point that his own attorney evidence of incompetence. And to the extent appellant's lack was calling his testimony “drivel.” It is not difficult to see of cooperation escalated, this was based on the fact that why appellant is upset with them. Appellant has been an the attorneys progressively engaged in tactics with which extraordinarily difficult client who seems to have made bad appellant disagreed, e.g. deposing appellant's children, and by choices about trial strategy. But bad choices are not the same the fact that the trial date loomed ever closer, both of which as irrational choices, except in the loosest, non-legal sense. are at least somewhat rational explanations for appellant's To the extent that the Court conflates the two, I believe that uncooperative behavior. it errs.

The trial court was within its discretion to find, after the C. Appellant's Testimony testimony of three expert witnesses, that appellant had not established a right to a full hearing. Appellant testified at trial that he did not commit the murders and that he was not even present at the time. He also testified I respectfully dissent. that his wife had been having an affair with the mayor and that the mayor had been threatening him. He claimed that his children were coerced into making statements against him. He 3 disagreed with his attorneys' decision to allow his children to participate in depositions, and he disagreed with his attorneys' strategy to admit in opening statement that he killed his wife. 3 Appellant also made statements that indicated he believed the defense attorney and the prosecutor were suppressing 3 evidence and conspiring to convict him.

On redirect, McCann asked appellant, “Mr. Turner, in your 3 mind, all that drivel was true, wasn't it?” Appellant responded, “It is true.” 3 On cross, the prosecutor asked, “Do you understand your attorney just said that you're lying, that it's drivel?” Appellant responded, “He's been saying this and trying to pretend.

Footnotes

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1 TEX. PENAL CODE § 19.03(a)(7)(A). 2 TEX.CODE CRIM. PROC. art. 37.071, §§ 2(b) & 2(e)(1). 3 TEX.CODE CRIM. PROC. art. 37.071, § 2(h). 4 In his ninth point of error, the appellant specifically argues that we should remand the cause for a retrospective competency hearing. Appellant's Brief at 29–31. 5 There is no evidence that the home was broken into, and the appellant was not charged with committing murder in the course of a burglary, another theory of capital murder. TEX. PENAL CODE § 19.03(a)(2). 6 According to the 2010 edition of the Physicians' Desk Reference, Risperdal is an “atypical antipsychotic” prescribed for the treatment of schizophrenia and bipolar disorder. PHYSICIANS' DESK REFERENCE 2682 (64th ed.2010). 7 Axelrad's report was submitted on the form approved by the Texas Correctional Office on Offenders with Medical or Mental Impairments under Section 614.0032(b) of the Texas Health and Safety Code. TEX.CODE CRIM. PROC. art. 46B.025(d); TEX. HEALTH & SAFETY CODE § 614.0032(b). 8 Because the presiding judge for the 268th Judicial District Court was out sick on December 10, 2010, both this ex parte conference in chambers and the hearing that occurred in open court later that same day were presided over by the judge of the 434th Judicial District Court. 9 We find no such motion or affidavit, however, in the record. 10 Other than the informal hearing on April 18th, after which the trial court ruled that no formal competency hearing was necessary, there had been no prior competency hearing. 11 We note here that having a rational understanding of the proceedings is not the same thing as having the ability to consult with trial counsel with a reasonable degree of rational understanding or to “rationally assist his lawyers in the defense of his case”—the specific issue that the trial court asked Almeida to evaluate. Unless a criminal defendant satisfies both criteria, he is incompetent to stand trial. TEX.CODE CRIM. PROC. art. 46B.003(a). 12 Trial counsel later renewed their claim that the appellant was incompetent in a motion for new trial. At a hearing on that motion, McCann testified that, prior to trial, the appellant “gave, at one point, three different versions of what had happened the night of the killings to myself and Mr. Moncriffe, and at no point in the conversation, did he indicate which one he intended to testify to.” McCann continued: He became extremely upset with us and me, in particular, and began to ask if, you know, I was part of a secret society that was trying to get him killed or that was advancing my career by failing to defend him. He, at one point, when we were sitting next to each other, asked me if I was putting things in his coffee. It—it had got to the point of absurdity in some of our conversations. He constantly referred me to Biblical passages that appeared to have no relevance in terms of his defense. [The appellant] was obsessed with the Mayor of Kendleton with whom he believed his wife had had an affair. He was constantly attempting to blame the killings on this—that person, and that's essentially what he testified to, almost as if he wanted it to be true. And I don't—I'm not a mental health professional. I can only tell you that I have done this for many years. I have never had a client who, so fundamentally refused to acknowledge the daily reality that we were dealing with to the point that it was as if he was telling you the sky was always green. That—I have to attribute to something other than ... a simple attempt to lie because there was no basis for the lie. There was not a fact to support his view of what was going on. 13 In three points of error, the appellant argues that, if he was indeed competent, then he was denied his Sixth Amendment right to represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In view of our disposition of this appeal, we need not presently address this claim. 14 The jury heard a recording of the 911 call that the appellant's daughter placed to report the killings as they were occurring. The first prosecutor argued: And I know that the only person not affected by that 9–1–1 call was the man who created it, the Defendant. And he basically told you that when he got up on that stand. He told that [his daughter] had misidentified him, that maybe she thought she saw him, but that's not who it was. Misidentified him? This is a 12–year–old girl who's not identifying a stranger; she's not giving just a general description of someone. It's her father. She knows who he is, and she knows what he did. He chose to testify and tell you a story, and that's exactly what it was, a story. But it doesn't make sense because lies don't make sense. The second prosecutor took up the theme of the appellant's demeanor from the witness stand: There were no tears from the Defendant. And what you saw of him on Friday, there was no admissions by him of what he had done. There was no shame for what he had done. “I wasn't there.” And it was defiance. It was defiance with a complete lack of acceptance of what the facts are in his demeanor from the witness stand.

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He comes up with a story it's the mayor of Kendleton's fault. What does that tell you about his demeanor and what his mindset is in this? 15 Those arguments include the following: And then what does he do? He gets up on the stand and he tells you that he wasn't even there. With all the overwhelming evidence against him, he still can't admit that he did it. He gets up on the stand and he says, I wasn't there, even though his own attorneys told you that he did it. What does that say about a person? What kind of person can sit and listen to the 9–1–1 call that y'all heard [the appellant's daughter] describing her grandmother and mother dying before her eyes and show no emotion? What kind of person can sit there and look at autopsy photos of what he's done, his wife and mother-in-law's necks open, and show no emotion? What kind of person is that? What does that say about a person? It says that they're a threat. It tells you that they're dangerous. He's shown absolutely no remorse and instead has done the complete opposite by saying he wasn't even there. You watched him testify during guilt/innocence. Do you remember he told you the story of how he went to his house and there was a man inside of his house? “I don't know who it was. It wasn't me. I wasn't there.” I know who was in his house and so do you. It was the Defendant. It was the Defendant. And it's not that he can't tell you; he won't. And just as we discussed during cross-examination of the Defendant, what kind of dangerous does that make him? What kind of dangerous does that make him? What kind of dangerousness is engendered in the lack of remorse? 16 E.g., Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (“We have repeatedly and consistently recognized that ‘the criminal trial of an incompetent defendant violates due process.’ ”) (quoting Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)). 17 Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). 18 Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). 19 Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). 20 TEX.CODE CRIM. PROC. ch. 46B, subch. A–C. 21 See TEX.CODE CRIM. PROC. art. 46B.003(a)(1) & (2) (“A person is incompetent to stand trial if the person does not have ... sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or ... a rational as well as factual understanding of the proceedings against the person.”). 22 TEX.CODE CRIM. PROC. art. 46B.024 §§ (1)(C) & (4) (emphasis added). (Section 4 of Article 46B.024 was amended in 2011, after the appellant's trial, and presently reads: “the degree of impairment resulting from the mental illness or mental retardation, if existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner.” Acts 2011, 82nd Leg., ch. 822, § 7, p. 1897, eff. Sept. 1, 2011.). See Morris v. State, 301 S.W.3d 281, 285–86 & n. 10 (Tex.Crim.App.2009) (factors listed in Article 46B.024 are “relevant” to the determination of competency, including whether the defendant can “engage in a reasoned choice of legal strategies and options”). 23 See, e.g., Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973) (evidence did not support trial court's finding that the appellant was competent to stand trial when testimony showed without contradiction that he suffered from paranoid schizophrenia and his mental illness prevented him from cooperating with trial counsel); State v. Pedersen, 309 N.W.2d 490, 501 (Iowa 1981) (although the defendant appeared to have a factual understanding of the proceedings against him, delusions fueled by schizophrenia prevented him from cooperating with defense counsel, rendering him “unable to assist effectively in his defense”); United States v. Blohm, 579 F.Supp. 495, 505 (S.D.N.Y.1983) (Dusky standard not satisfied when, although he had factual understanding of the proceedings, the defendant harbored certain delusional beliefs that rendered him “unable to consult with his lawyer and assist in his own defense”); Strickland v. Francis, 738 F.2d 1542, 1551 (11th Cir.1984) (overturning a state-court finding that the applicant was competent to stand trial because expert testimony overwhelmingly established that his mental illness caused delusions that rendered him “unable to understand the nature of the proceedings against him and to participate meaningfully in his defense”); United States v. Hemsi, 901 F.2d 293, 296 (2nd Cir.1990) (evidence supported the trial court's finding of incompetency because the appellant's “major psychiatric disorder and his impaired sense of reality prevented him from focusing on his legal needs and from acting effectively on his intellectual understanding, and would prevent him from cooperating rationally in his defense”); Lafferty v. Cook, 949 F.2d 1546, 1556 (10th Cir.1991) (state court erred to find the applicant competent on the basis of a simple factual understanding of the proceedings against him where his paranoid delusions rendered him unable “to realistically determine where his best interests lie”); United States v. Boigegrain, 155 F.3d 1181, 1189–90 (10th Cir.1998) (evidence sufficient to support trial court's finding of incompetency when “the defendant was delusional and suffered from ‘paranoid ideation,’ causing him to believe that his lawyer was participating in a conspiracy, along with the prosecutor and the judge, to incarcerate him for reasons unrelated to the charge against him”); United States v. Ghane, 490 F.3d 1036, 1040 (8th Cir.2007) (evidence sufficient to support trial court's finding of incompetency because, though the defendant had a factual understanding of the proceedings against him, “that understanding was not rational because it was

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 17 Turner v. State, --- S.W.3d ---- (2013)

premised on his delusion of a government conspiracy working against him, including the doctors, lawyers, and the court”); People v. Mondragon, 217 P.3d 936 (Colo.App.2009) (trial court erred to find the defendant competent based on factual understanding of the proceedings alone when his mental illness prevented him from making a rational decision whether to testify in his own behalf). See also Wilcoxson v. State, 22 S.W.3d 289, 305 (Tenn.Crim.App.1999) (“[C]ourts have acknowledged that, even if a criminal defendant has an intellectual understanding of the charges against him, he may be incompetent if his impaired sense of reality substantially undermines his judgment and prevents him from cooperating rationally with his lawyer[.]”). Other courts have followed suit, albeit in unpublished decisions. See United States v. Nagy, No. 96 CR. 601(RWS), 1998 WL 341940, at *7 (S.D.N.Y. June 26, 1998) (the defendant's “understanding of the pending criminal proceedings is necessarily skewed by his [delusional] belief that there is a conspiracy against him involving, among others, judges, the Government, a priest, his landlord, and all psychiatrists who have examined him”); United States v. Bauman, No. 07–20052–KHV, 2008 WL 2560706, at *7 (D.Kan. June 26, 2008) (notwithstanding evidence that the defendant had a factual understanding of the proceedings, the trial court “finds that due to a delusional disorder, defendant lacks sufficient contact with reality to the extent that he cannot rationally consult with or cooperate with his attorney in this case”); Aldridge v. Thaler, No. H–05–608, 2010 WL 1050335, at *33 (S.D.Texas March 17, 2010) (“Without the ability to make crucial decisions and add relevant information to the defense, communication [with counsel] does not amount to the consultation or assistance required by the Supreme Court.”); State v. Williamson, No. 1106025042, 2013 WL 268981, at *9 (Del.Super.Ct. January 23, 2013) (“[D]efense lawyers must provide the best defense consistent with the client's direction. However, when delusions infect the process with fanciful aberrations, the trial would be a mockery of justice. Where a psychotic disorder precludes a meaningful defense, then no one can be subject to the gauntlet of trial.”). 24 See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (in a criminal case, “the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal”); Ex parte Mines, 26 S.W.3d 910, 915 (Tex.Crim.App.2000) (“Another reason for requiring competency at trial is that the defendant must make significant choices that require the advice of counsel but that are ultimately decided by the defendant. The defendant must be competent to decide whether to invoke or to waive such personal constitutional rights.”) (citations omitted). 25 See Mondragon, supra, at 942 (“[I]f defendant's mental disease or defect rendered him incapable of deciding rationally whether to testify, then, because of the nature of that right, he necessarily lacked the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and the requisite factual and rational understanding of the proceedings against him.”). 26 Moore v. State, 999 S.W.2d 385, 395 (Tex.Crim.App.1999); Bouchillon v. Collins, 907 F.2d 589, 593 (5th Cir.1990). 27 See Reed v. State, 112 S.W.3d 706, 710 (Tex.App.–Houston [14th Dist.] 2003, pet. ref'd) (“It is not enough for counsel to allege unspecified difficulties in communicating with the defendant.”) (citing Moore, supra, at 394). 28 Loftin v. State, 660 S.W.2d 543, 546–47 (Tex.Crim.App.1983). 29 In 2003, the Legislature comprehensively revised the procedures governing determinations of competency to stand trial, repealing former Article 46.02 of the Texas Code of Criminal Procedure, and replacing it with current Chapter 46B. See Acts 2003, 78th Leg., ch. 35, §§ 1 & 15, pp. 57–68 & 72, eff. Jan. 1, 2004. 30 See TEX.CODE CRIM. PROC. art. 46B.004(c) (“On suggestion that the defendant may be incompetent to stand trial, the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.”). 31 Montoya v. State, 291 S.W.3d 420, 425 (Tex.Crim.App.2009) ( “suggestion” means the same as bona fide doubt under former statutory provisions; hence, “[i]f a trial judge has a bona fide doubt about the competency of the defendant, he or she shall conduct an informal inquiry to determine if there is evidence that would support a finding of incompetence”). Cf. Alcott v. State, 51 S.W.3d 596, 600–01 (Tex.Crim.App.2001) (under the former statutory scheme, bona fide doubt triggered competency inquiry during which the trial court must determine whether there is “some evidence” to support a finding of incompetency so as to trigger a formal competency hearing). 32 See Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901, eff. Sept. 1, 2011 (adding Subsection (c–1) to Article 46B.004 to provide that: “A suggestion of incompetency is the threshold requirement for an informal inquiry under Subsection (c) and may consist solely of a representation from any credible source that the defendant may be incompetent. A further evidentiary showing is not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant.”). 33 TEX.CODE CRIM. PROC. art. 46B.004(c). 34 Ex parte LaHood, 401 S.W.3d 45, 52–53 (Tex.Crim.App.2013) (quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex.Crim.App.1980) (plurality opinion)). See also Williams v. State, 663 S.W.2d 832, 834 (Tex.Crim.App.1984) (applying Sisco, and construing prior statutory language that required a formal competency hearing upon a determination that there is evidence from any source “to support a finding of incompetency to stand trial”); Barber v. State, 737 S.W.2d 824, 828 (Tex.Crim.App.1987) (same); George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31:36, at 49 (3rd ed. 2011) (“The

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language used [in the current statutory scheme] for the standard to determine whether a hearing must be held is identical to that in the former statute determining whether a jury trial was required. This clearly incorporates the case law development of that criterion[.]”). 35 See TEX.CODE CRIM. PROC. art. 46B.005(a) & (b) (if informal inquiry reveals “that evidence exists to support a finding of incompetency,” then the trial court should order an expert examination and “shall hold a trial ... before determining whether the defendant is incompetent to stand trial”); George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31:53, at 63 (3rd ed. 2011) (“A trial on the merits of the competency issue is apparently required if the trial court determines that evidence exists to support a finding of incompetency. This standard uses the same terminology as former ... Article 46.02, section 4(a) of the Code of Criminal Procedure. Almost certainly, it will be given the same interpretation as that prior statutory language.”). If “evidence exists to support a finding of incompetency,” a trial is mandated unless the parties can agree without a trial that the defendant is incompetent. TEX.CODE CRIM. PROC. arts. 46B.005(a)–(c), 46B.054. Unlike the former statutory regime, which required that a jury be empaneled to determine competency, under the current statute, the trial court makes the ultimate determination with respect to competency unless either of the parties or the trial court itself registers a preference that “a jury shall make that determination.” TEX.CODE CRIM. PROC. art. 46B.051. 36 E.g., Ferguson v. State, 579 S.W.2d 2, 4–5 (Tex.Crim.App.1979); Bigby v. State, 892 S.W.2d 864, 885 (Tex.Crim.App.1994). 37 See Drope, supra, at 181 (“Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.”). 38 TEX.CODE CRIM. PROC. art. 46B.024(4) & (1)(C), respectively. 39 In her dissenting opinion, Judge Keller relies heavily upon the lack of expert opinion that there was any “current evidence to substantiate a delusional or other psychiatric disorder.” Dissenting Opinion at 6. It is true that none of the experts in this case ultimately expressed such an opinion. However, it is not evident why the opinion of an expert should be considered indispensable to raising incompetency—especially considering our holding that an expert's opinion is not necessary to raise the defense of insanity (which, unlike the standard for incompetency to stand trial, expressly requires a finding that the defendant's condition be “a result of severe mental disease or defect”). Cf. Pacheco v. State, 757 S.W.2d 729, 736 (Tex.Crim.App.1988) (“[W]e hold that predicated lay opinion testimony when considered with facts and circumstances concerning an accused and of the offense may be sufficient to raise the issue [of insanity].”); TEX. PENAL CODE § 8.01(a). And while none of the experts here stated unequivocally that the appellant is mentally ill, both Gollaher and Axelrad noted the possibility of paranoid and delusional thinking on his part, and Axelrad observed that he was “an individual who may have a mental illness and [that] the diagnosis may be a paranoid disorder.” Axelrad even found appellant to be at least “mildly impaired” on that account in his ability to rationally engage with counsel about the case and about his choice of legal strategies and options. Almeida's conclusion that the appellant displayed no delusional disorder was based upon her perception that there were “no significant changes in [the appellant's] emotional or cognitive functioning” since the year-old evaluations of Gollaher and Axelrad. She took no account of the appellant's subsequent behaviors that might serve to substantiate the initial impressions of Gollaher and Axelrad that he may suffer from a “mental illness” that “may be a paranoid disorder.” These circumstances constitute some evidence—at least “more than none or a scintilla,” see note 34, ante—that the appellant suffers from a debilitating mental illness—enough that, in combination with some evidence of the other two factors, it may be said “that evidence exists to support a finding of incompetency” for purposes of a formal competency trial under Article 46B.005. 40 Supposing (without deciding) that the appellant was incompetent, it is not difficult to imagine how his delusional beliefs could have tainted the trial process. Taking the witness stand against the advice of counsel, he proceeded to testify at odds with the defensive posture of his lawyers based upon a wholesale denial of responsibility that was worse than implausible. This opened the door for the prosecutors to expose the irrationality of his account on cross-examination and then to highlight, at both the guilt and punishment phases of trial, that his willful refusal to acknowledge blame was nothing but a clear signal of his enduring threat to society. To the extent that the appellant's disastrous decision to testify was the product of a conflict with trial counsel that derived from a paranoid pathology, it is constitutionally intolerable. The trial court erred not to conduct a formal competency trial that could have ruled out that substantial possibility before proceeding to trial on the indictment. We do not mean by these observations to suggest that due process error in putting an incompetent defendant to trial is necessarily subject to a constitutional harm analysis. Although at least one court has held such error to be “structural,” Mondragon, supra, at 942–43, neither the United States Supreme Court nor this Court has yet declared whether the due process violation of trying an incompetent defendant constitutes the type of constitutional error, such as those enumerated most recently in United States v. Gonzalez–Lopez, 548 U.S. 140, 148–49, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), that is not susceptible to a harm analysis. We have no occasion to decide that question today. We simply point out that, if on remand the appellant in this case should indeed be found to be incompetent to stand trial, it is not hard to see how his incompetency had an obviously deleterious impact on the conduct of his trial, and particularly, his exclusive decision whether or not to testify. 41 See note 34, ante.

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42 See George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31:81, at 89– 90 & n. 10 (3rd ed.2011) (citing, e.g., Torres v. State, 593 S.W.2d 717, 719 (Tex.Crim.App.1980) (remanding to trial court to decide, inter alia, whether “a nunc pro tunc determination of appellant's competency is not possible”); Ex parte McKenzie, 582 S.W.2d 153, 155 (Tex.Crim.App.1979) (remanding case to the trial court to “determine if it is possible to conduct a nunc pro tunc competency hearing and, if it is, to hold such a hearing” under the then-extant competency-to-stand-trial statute); Ex parte Winfrey, 581 S.W.2d 698, 699 (Tex.Crim.App.1979) (holding that the original competency hearing suffered from a flawed jury instruction, this Court remanded to the trial court for a determination whether, inter alia, a retrospective competency hearing was feasible)). 43 TEX.CODE CRIM. PROC. ch. 46B, subch. C. 44 This Court has sometimes disposed of other appellate points of error on original submission before remanding a cause for a retrospective competency determination. E.g., Brandon v. State, 599 S.W.2d 567, 574 (Tex.Crim.App.1979) (opinion on original submission); Barber v. State, 737 S.W.2d 824, 829 (Tex.Crim.App.1987). Three of the appellant's remaining points of error in this case, however, involve the issue of whether he should have been allowed to represent himself at various points at trial. See note 13, ante. The ultimate resolution of the issue of his competency to stand trial may prove to have some bearing on these points of error. See Indiana v. Edwards, 554 U.S. 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (“[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”). We therefore believe that resolution of these self-representation claims, if necessary, would best await our opinion after remand. The appellant's remaining points of error involve claims that the State exercised certain peremptory challenges to discriminate against African–American veniremen and that the trial court erred in failing to bench warrant the appellant from the penitentiary to assure his attendance at the motion for new trial hearing. The resolution of these claims also may prove unnecessary. In order to avoid resolving the appellant's points of error piecemeal—some now and some later—we will abstain from addressing any of them unless and until it should become necessary to do so in our opinion after remand. 1 TEX.CODE CRIM. PROC. art. 46B.003(a). 2 See Panetti v. Quarterman, 551 U.S. 930, 962, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“Expert evidence may clarify the extent to which severe delusions may render a subject's perception of reality so distorted that he should be deemed incompetent.”).

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 20 Exhibit B 1

1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. 10-DCR-054233

3 THE STATE OF TEXAS ) IN THE DISTRICT COURT ) 4 vs. ) FORT BEND COUNTY, TEXAS ) 5 ALBERT JAMES TURNER ) 268TH JUDICIAL DISTRICT

6 7

8 _____________________________________________

9 DETERMINATION OF RETROSPECTIVE COMPETENCY _____________________________________________ 10

12 On May 30, 2014, the following proceedings came on 13 to be held in the above-titled and numbered cause before

14 the Honorable Brady G. Elliott, Judge Presiding, held in 15 Richmond, Fort Bend County, Texas. 16 Proceedings reported by computerized stenotype

17 machine. 18

20 21

22 23

25 2

1 APPEARANCES 2 MR. FRED FELCMAN MS. GAIL MCCONNELL 3 MS. LESLEIGH SAUNDERS FORT BEND COUNTY DISTRICT ATTORNEY'S OFFICE 4 301 JACKSON RICHMOND, TEXAS 77469 5 Counsel for The State of Texas

6 MR. RICHARD A. MORROW SBOT NO. 14542400 7 LOCKE LORD, L.L.P. 600 CONGRESS AVENUE, SUITE 2200 8 AUSTIN, TEXAS 78701 Telephone: 512.305.4709 9 Counsel for Defendant 10 MR. JAMES RYTTING SBOT NO. 24002883 11 Hilder & Associates 819 Lovett Boulevard 12 Houston, Texas 77006 Telephone: 713.655.9111 13 Writ Counsel for Defendant

14 15

17 18

25 3

1 2 VOLUME 1

3 DETERMINATION OF RETROSPECTIVE COMPETENCY

4 May 30, 2014 PAGE VOL. 5 Proceedings Commence .............................. 4 1

6 Announcements ..................................... 4 1 7 Ruling of the Court .............................. 16 1 8 Reporter's Certificate ........................... 19 1

9 10

12 13

25 4

1 PROCEEDINGS 2 THE COURT: This is in the matter of The

3 State of Texas vs. Albert James Turner, No. 54233.

4 If you'll make your announcements, please. 5 MR. FELCMAN: Fred Felcman for The State

6 of Texas, Judge. 7 MR. MORROW: Robert Morrow for the 8 defendant, Mr. Turner; and Aisha Khan is with me this

9 morning, your Honor. 10 THE COURT: Mr. Morrow, I noticed in the

11 files, the papers in the file, that you've entered your

12 appearance as lead attorney for Mr. Turner at this 13 stage.

14 MR. MORROW: I have, your Honor. I've 15 openly discussed that. 16 THE COURT: Okay. Very good.

17 The purpose of this hearing is to 18 determine the necessity of a -- or the necessity and 19 feasibility of a retrospective competency hearing, and

20 you've been joined by counsel for -- who's handling the 21 writ.

22 Do you want to make your announcements, if 23 you're going to participate? 24 MR. RYTTING: Yes, James Rytting here for

25 Mr. Albert James Turner. 5

1 THE COURT: All right. The way this has 2 come down, as I've read the opinion of the Court of

3 Criminal Appeals, it almost throws this on my lap to

4 determine the feasibility; and I am interpreting that to 5 ask for help from counsel who's best positioned to do so

6 to argue the necessity -- Well, not necessity. The 7 Court of Criminal Appeals has already ordered the 8 necessity of it, but the feasibility and the method by

9 which we will accomplish that task, so I -- Since both 10 of you are basically in the same position, I believe, I

11 don't know who's the lead in this or not; but using

12 normal procedure, since it's the burden of the defendant 13 to raise competency, I believe that burden still rests

14 with the defense, so I'll proceed with you and 15 Mr. Morrow and let you lead off on this issue. 16 MR. MORROW: Thank you, Judge.

17 Judge, I did want to mention to the Court 18 that Ms. Amy Martin has put just a tremendous amount of 19 work in this case and would be here with me this

20 morning, but she lost her dad about a week ago, and the 21 funeral is actually right now.

22 THE COURT: I'm sorry to hear that. 23 MR. MORROW: Yes, sir, and I apologize. 24 And, of course, she, except for that extraordinary

25 circumstance, would be here so -- and I hope she will be 6

1 joining us later on in the litigation as we continue. 2 So, Judge, we believe that there's a

3 threshold finding that the Court has to deal with which

4 is whether, as you mentioned, there's the feasibility of 5 having this hearing; and we think before that, we're

6 going to ask the Court and we prepared a motion this 7 morning to let us have an expert to determine whether 8 Mr. Turner is competent now to proceed.

9 And the Green case, which I'll share with 10 the Court, with the prosecutors, 264 S.W.3d 261, out of

11 the San Antonio Court of Appeals, dealt with a situation

12 that's similar to ours, we believe, where the defendant 13 in that case was incompetent, had been incompetent; and

14 in the case, they were determining whether or not they 15 could do a retrospective competency hearing; and the 16 Court in that case found that because of the continued

17 incompetency of the defendant, it was not practical to 18 do so. 19 So we believe the best way to proceed

20 right now would be to let us have an expert examine 21 Mr. Turner for his present competency and then put that

22 in front of the Court so you can have that to consider 23 before deciding whether you could go forward; that way, 24 we'd have an up-to-date, you know, opinion about his

25 state, and you'd be able to make a better decision about 7

1 whether it's possible to have this hearing that the 2 Court has asked you to consider.

3 THE COURT: Mr. Felcman, your response.

4 MR. FELCMAN: I appreciate Mr. Morrow's 5 giving me the case; I really do.

6 This is a very unusual circumstance, okay. 7 We have a 5/4 decision. The five, in reaching a 8 decision in this, use a nonsecular reasoning, circular

9 logic, sort of bypass abusive discretion, and then 10 ignore certain portions of the law; and then they tell

11 you, make a decision whether you can have a retroactive

12 hearing on this matter. Never do they -- Never do they 13 put in the -- in their findings that you will be unable

14 to make a retroactive hearing. 15 Now, I bring that to the attention of the 16 Court because the five people who wrote this should know

17 what the circumstances are. In this particular case, 18 you've already had several experts look at the defendant 19 and all said he was competent. Or they'd say they

20 couldn't determine it because he didn't cooperate with 21 them.

22 THE COURT: I think that's a more accurate 23 rendition of their findings is that they're unable to 24 make a decision because Mr. Turner will not cooperate

25 with the process. 8

1 MR. FELCMAN: Actually, some of them did 2 find him competent. But I understand; you're correct.

3 THE COURT: But that is a finding that

4 we've always followed in the law of competency that if 5 the person won't cooperate and won't participate, they

6 are to be determined to be competent. 7 MR. FELCMAN: That's correct. 8 THE COURT: Which is -- I guess that's

9 what's got in my crawl about this whole matter is that 10 following that rule of law, I get this returned to me.

11 MR. FELCMAN: And actually if you read it

12 over, they actually go ahead and say: "Because the 13 doctor couldn't decide whether he's competent, we must

14 presume he's incompetent." Therefore, I disagree with 15 the opinion wholeheartedly; but that doesn't let you off 16 the hook.

17 THE COURT: Well, did they find that if he 18 didn't participate, then he is incompetent? 19 MR. FELCMAN: They actually have a section

20 in there because the doctor couldn't have enough 21 information to determine whether he was competent or

22 not, there's not evidence that he is competent; 23 therefore, they sort of switched the burden of proof at 24 one point in time in the opinions.

25 THE COURT: So they have changed the whole 9

1 body of law -- 2 MR. FELCMAN: They've changed the

3 standard.

4 But that's not Mr. Morrow's fault, 5 whatever. He's just in here arguing his point. I

6 believe that the feasibility of this is quite easily 7 done. The only evidence you will actually have on this 8 matter is --

9 THE COURT: Well, let's talk about his 10 request first that he -- we need to bring him down and

11 determine his competency presently.

12 MR. FELCMAN: That's correct, Judge. And 13 the cases he cited is actually correct. He cites you

14 correctly. It doesn't give any specifics on it. 15 MR. MORROW: May I approach? 16 MR. FELCMAN: Yeah, sure. Give it to him.

17 He doesn't give you any specifics about 18 what was the scenario on this one. It doesn't say -- I 19 don't know if it says anything about the reason we're

20 having this is because he wasn't cooperating with his 21 counsel.

22 Did it say anything like that in there 23 specifically? 24 MR. MORROW: No. No, I don't think it

25 addresses cooperation that I remember. 10

1 MR. FELCMAN: And that's what I think is 2 the key on this particular case. We're just here

3 because the defendant doesn't want to cooperate, all

4 right. And even in the opinion, they say he meets it. 5 We all know nobody's argued that he doesn't have a

6 rational understanding of what's going on here. All 7 we're dealing with here is his ability to cooperate with 8 defense counsel. That's the only issue we're really

9 dealing with here. This case could be pertinent. On 10 the other hand, I don't think it is under the scenario

11 that we have right now.

12 If he has changed, if something comes up 13 where the -- I guess you could do it if the psychiatrist

14 comes up and he has now got a mental illness, maybe that 15 would be something you would need to address; but I 16 don't think we have -- Do we have anything at all on the

17 record that he's got a new mental illness, or is it 18 basically the same thing as always, he doesn't want to 19 cooperate with anybody?

20 MR. MORROW: No, I think even Dr. Alexrad 21 and some of the other doctors mentioned a mental

22 illness; and if I could address Fred's point briefly, 23 Judge, we argue really that this vexation that he won't 24 cooperate is really the best evidence of his mental

25 illness; and the trial itself was so -- Judge, you 11

1 observed that that was so vividly illustrated. This 2 isn't someone that's just, you know, hardheaded. This

3 is someone whose mental illness, whose fixed delusion

4 that we are all conspiring to kill him has kept him from 5 cooperating.

6 And when you look at the T.D.C. records, 7 it's consistent throughout his records. He won't sign 8 things; he won't participate in any way, and it's --

9 That's the mental illness that's expressing itself that 10 makes him incompetent, so while it's extremely

11 frustrating to deal with him, that is his illness, so we

12 ask that we be able to bring that more forcibly to the 13 Court and more vividly to the Court so that you could

14 decide whether you can have this hearing or not. 15 THE COURT: Okay. This is part of what's 16 bothering me about -- The defense has made the request

17 that he be brought in to determine current competency 18 several times. 19 MR. MORROW: Yes, sir.

20 THE COURT: But how does this relate to 21 the Trial on the Merits of the case which is what

22 brought us to this point? I made an explicit finding 23 during the trial that he was competent by my 24 observations. Now, there's room for disagreement there;

25 but at least I'm the one that got to see him for the 12

1 several weeks that we sat through that. 2 Based upon the professionals' examination,

3 they could not reach a decision or they reached a

4 decision finding him competent. We're focused on the 5 Trial on the Merits which brought this issue before the

6 Court of Criminal Appeals, which was to determine 7 whether he was competent during the trial. How is 8 determining his competency now going to impact a

9 decision that I would have to make and the Court of 10 Criminal Appeals would have to make in the end as it

11 relates to his competency at the time of trial? I guess

12 that's the confusing point about your request. 13 MR. MORROW: Judge, if I believe that due

14 process requires that before this -- you can make the 15 next determination, Is this feasible, we have to have a 16 client that can participate to some degree. If we show

17 he can't participate, can't aid his lawyers, then the 18 answer to the question is there for you, that it's not 19 feasible to go forward; and that will end the inquiry.

20 Judge, I was joking earlier about the 21 civil proceeding. I'm just focusing on the remand and

22 abatement for the Court of Criminal Appeals. The rest 23 of it's just too much to take in at one time, so I'm 24 looking at what did they ask you to do, what did they

25 ask Judge Elliott to do, and that is to decide, Is it 13

1 feasible to have a retrospective competency hearing, 2 and, if so, how are we going to do that.

3 We believe that we need to have this

4 examination to ensure due process for Mr. Turner so that 5 before you make that decision, you know whether or not

6 he's competent; and if he's not, of course, we're going 7 to argue it's not feasible to go forward. 8 THE COURT: Okay. Yes, sir.

9 MR. FELCMAN: I appreciate his argument, 10 but that also validates why it is feasible to have a

11 retroactive hearing. This man will not cooperate. It's

12 just that simple. He won't change his stance on that. 13 The defense of the defendant during the

14 trial, it's actually now evident why he may not have 15 wanted to cooperate. That's what the Court did in its 16 decision about Pat McCann's -- What was his ultimate

17 defense of the defendant? And when you read over the 18 dissent, they look at it and say, We understand why he 19 wasn't cooperating with the defense. Look what the

20 defense was. Look at the things they did when he said 21 he didn't want them to do that.

22 We also will have the testimony, of 23 course, things that will aid the Court in making this 24 feasibility -- I mean, making this decision or the jury

25 making this decision. His relationship with the family 14

1 members, all the things that occurred during the trial 2 make it far more feasible to have a retroactive

3 competency hearing that ever could occur.

4 Now, him having examined, Mr. Morrow's not 5 trying to trick the Court. It's in there; but I believe

6 in the long run, it will not have any bearing whatsoever 7 about his retroactive -- or what his competency was back 8 then.

9 THE COURT: Well, I understand the due 10 process argument you're making, that it's difficult --

11 Well, it's clear that if there's a Trial on the Merits

12 on any definitive issue, the defendant has a right to 13 not only be there but to participate in that process;

14 and if we, in fact, have a retrospective competency 15 hearing, it's important that he be here, No. 1, and, 16 No. 2, able to participate.

17 I have some doubts in my mind whether 18 Mr. Turner will change the process that he has used 19 throughout this matter, but that's in the future. I

20 can't read that crystal ball yet. 21 MR. MORROW: May I speak to that briefly,

22 Judge, before you move on? 23 THE COURT: Yes, sir. 24 MR. MORROW: Judge, it's been a long time

25 since someone's approached him to examine him, years 15

1 now; and we're in a different posture. And I may be the 2 ridiculous optimist in the world; but I believe if we

3 can talk to him now, which would require him to come

4 back to Fort Bend County, and explain the posture of 5 this case and then present him with a disinterested

6 expert, someone that's not -- that he's not seen before 7 that's part of the conspiracy -- You know, I'm not 8 saying we can cure him. It may get better. But I just

9 want that chance, Judge; and I think that's what due 10 process is, is to bring him back now in 2014 and say,

11 "Mr. Turner, the situation has changed. Here's what the

12 circumstances are, and you need to participate with this 13 doctor."

14 I think -- You know, I just want that 15 chance, Judge; and I think that's what due process 16 requires; and we would ask the Court, with all due

17 respect, to let us have that opportunity. 18 MR. FELCMAN: Oh, I agree. Why doesn't 19 he go talk to him? I'm more, You can go talk to him,

20 Counsel, and see what he says. This is going to be a 21 Catch-22 with them; and whatever ends up finding, I will

22 be able to use it to sustain why the feasibility of a 23 retrospective hearing is even more -- 24 Mr. Morrow, you're correct. He ought to

25 be able to talk to his client, but that doesn't have 16

1 anything to do with his competency back then. 2 THE COURT: Let me read this Green case

3 real quick.

4 MR. FELCMAN: Yeah. 5 THE COURT: All right. I think out of an

6 abundance of caution, I'm going to grant the defendant's 7 request to have a current competency examination 8 performed on Mr. Turner. Because this is a heavily

9 contested matter, what I'm going to order is that the 10 defense and the State each provide their own expert to

11 examine Mr. Turner to determine his present competency.

12 I will order a -- bench warrant him to 13 Fort Bend County, and I want this done as rapidly as

14 possible. We've delayed this matter quite a bit, and we 15 need to move forward, so submit your names for your 16 experts to the Court. I will order their examination of

17 Mr. Turner; and if you'll prepare a bench warrant today, 18 Mr. Felcman, I'll submit that order. 19 MR. MORROW: May I approach with this

20 motion, Judge? 21 THE COURT: Yes.

22 MR. FELCMAN: Does anybody have a 23 suggestion of exactly what they're supposed to be 24 looking for regarding his competency? Because this is

25 not a trial setting, this is not a defensible issue, is 17

1 it going to be the same standard, or is it going to be 2 something different?

3 THE COURT: It's going to be the same

4 standard, competency -- 5 MR. FELCMAN: Same.

6 THE COURT: Because the request is a due 7 process request to assist counsel; and, therefore, it 8 would be the same standard as we use for the trial. And

9 I think that would -- In the abundance of caution, I 10 think that would be the best way to proceed; and we can

11 get this done at the earliest convenience; and dependent

12 upon their findings, we'll hold a hearing very shortly 13 thereafter to proceed to the feasibility part of this

14 issue. 15 MR. FELCMAN: Now, the five judges up 16 there used that against you. You said, "Abundance of

17 caution." They said that that meant that you had a good 18 faith doubt about the defendant's competency in this 19 matter. They used that, even though you multiple times

20 said, Listen, I'm just doing this out of an abundance of 21 caution.

22 THE COURT: The abundance of caution is to 23 make a full record for the Court of Criminal Appeals to 24 have before them. I have no doubt in my mind that he

25 was competent; but on the other hand, this is a question 18

1 that's been raised by nine folks smarter than I am, or 2 at least five of them; and we're going to give them all

3 the ammunition they can use.

4 MR. FELCMAN: Thank you, Judge. 5 MR. MORROW: Judge, can we approach off

6 the docket -- off the record about schedules? 7 MR. FELCMAN: One last thing, Judge. 8 THE REPORTER: On the record?

9 MR. FELCMAN: On the record, please, one 10 last thing.

11 I know Mr. Morrow's aware of it. There

12 are specific requirements for the qualifications of the 13 psychiatrist, okay, so that has to be met on those.

14 THE COURT: Off the record, Mindy. 15 THE REPORTER: Yes, sir. 16

25 19

1 THE STATE OF TEXAS § 2 COUNTY OF FORT BEND §

3 I, Mindy R. Hall, official court reporter in and for

4 the 268th District Court of Fort Bend County, State of 5 Texas, do hereby certify that the above and foregoing

6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in

8 writing by counsel for the parties to be included in

9 this volume of the Reporter's Record in the above-styled 10 and numbered cause, all of which occurred in open court

11 or in chambers and were reported by me.

12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits,

14 if any, offered by the respective parties. 15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $127.50 and

17 will be paid by Fort Bend County. 18 WITNESS MY OFFICIAL HAND this, the 18th day of

19 August, 2014.

20 /s/Mindy R. Hall______________ 21 Mindy R. Hall, CSR Texas CSR 8107 22 Official Court Reporter 301 Jackson 23 Richmond, Texas 77469 Telephone: 281.341.8611 24 Expiration: 12/31/2014

25 all [13] 5/1 7/19 10/3 10/5 10/6 10/16 $ 11/4 14/1 15/16 16/5 18/2 19/6 19/10 C $127.50 [1] 19/16 almost [1] 5/3 came [1] 1/12 already [2] 5/7 7/18 can [11] 6/22 7/11 11/14 12/14 12/16 / also [2] 13/10 13/22 15/3 15/8 15/19 17/10 18/3 18/5 /s/Mindy [1] 19/20 always [2] 8/4 10/18 can't [3] 12/17 12/17 14/20 am [2] 5/4 18/1 case [12] 5/19 6/9 6/13 6/14 6/16 7/5 0 ammunition [1] 18/3 7/17 10/2 10/9 11/21 15/5 16/2 054233 [1] 1/2 amount [1] 5/18 cases [1] 9/13 Amy [1] 5/18 Catch [1] 15/21 1 announcements [2] 4/4 4/22 Catch-22 [1] 15/21 10-DCR-054233 [1] 1/2 answer [1] 12/18 cause [3] 1/2 1/13 19/10 12/31/2014 [1] 19/24 Antonio [1] 6/11 caution [5] 16/6 17/9 17/17 17/21 17/22 14542400 [1] 2/6 any [6] 9/14 9/17 11/8 14/6 14/12 19/14 certain [1] 7/10 18th [1] 19/18 anybody [2] 10/19 16/22 certify [3] 19/5 19/12 19/15 anything [4] 9/19 9/22 10/16 16/1 chambers [1] 19/11 2 apologize [1] 5/23 chance [2] 15/9 15/15 2014 [5] 1/12 3/4 15/10 19/19 19/24 Appeals [7] 5/3 5/7 6/11 12/6 12/10 change 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1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. 10-DCR-054233 APPELLATE CASE NO. AP-76,580 3 THE STATE OF TEXAS ) IN THE DISTRICT COURT 4 ) vs. ) FORT BEND COUNTY, TEXAS 5 ) ALBERT JAMES TURNER ) 268TH JUDICIAL DISTRICT 6 7

9 MOTIONS HEARING _____________________________________________ 10

12 On January 16, 2015, the following proceedings came 13 on to be held in the above-titled and numbered cause

14 before the Honorable Brady G. Elliott, Judge Presiding, 15 held in Richmond, Fort Bend County, Texas. 16 Proceedings reported by computerized stenotype

1 APPEARANCES 2 MR. FRED FELCMAN Texas Bar No. 06881500 3 Assistant District Attorney MR. CHAD BRIDGES 4 Texas Bar No. 00790369 Assistant District Attorney 5 MS. GAIL MCCONNELL MS. LESLEIGH MORTON 6 301 Jackson Richmond, Texas 77469 7 Telephone: 281.238.3230 Counsel for The State of Texas 8 MS. AMY D. MARTIN 9 Texas Bar No. 24041402 Law Office of Amy Martin 10 202 Travis Street, Suite 300 Houston, Texas 77002 11 Telephone: 713.320.3525 Amymartinlaw@gmail.com 12 Mitigation Specialist for Defendant 13

3 Motions Hearing

4 January 16, 2015 PAGE VOL. 5 Announcements ..................................... 4 1

6 Defense's Motion to strike Murray ................. 4 1 7 Court's Ruling on Defendant's Motion ............. 6 1 8 Defendant's Motion to address current incompetency 6 1

9 Court's Ruling on motion ......................... 12 1 10 Reporter's Certificate ........................... 17 1

1 PROCEEDINGS 2 THE COURT: Okay. We're here on the

3 matter of The State of Texas vs. Albert James Turner,

4 No. 54233. 5 Let me have your announcements, please.

6 MS. MARTIN: Amy Martin for the defendant, 7 Albert James Turner. 8 MR. FELCMAN: Fred Felcman for the State,

9 Judge. 10 THE COURT: And, Ms. Martin, you're

11 waiving having Mr. Turner here for this hearing?

12 MS. MARTIN: Yes, sir. 13 THE COURT: All right. This was

14 originally scheduled for a status, but I have a few 15 motions that have been filed, one of them was the motion 16 of the defense to strike the State's expert, Murray, I

17 believe is his name. 18 MS. MARTIN: Dr. Brian Murray. 19 THE COURT: Dr. Brian Murray.

20 Mr. Felcman, do you have anything to say 21 on that?

22 MR. FELCMAN: First of all, this was not 23 the State's expert. This was an expert appointed by the 24 Court during an ex parte hearing between the defense and

25 the Court. Dr. Brian Murray's report was never given to 5

1 us nor supplied to us by defense counsel because it was 2 contrary to what the defense status or the position in

3 the case was. The reason we found out about Dr. Brian

4 Murray is that we found a bill in it, and the second is 5 that we have the statement from Pat McCann setting out

6 what Brian Murray had actually said on it. 7 As far as a competency, we had no 8 intention of calling Dr. Brian Murray on this matter.

9 MS. MARTIN: Can I respond briefly, your 10 Honor?

11 THE COURT: Yes.

12 MS. MARTIN: Dr. Brian Murray never 13 produced a report until the State got a report from him

14 in November. They're the ones who got him to write a 15 report and, according to him, make adjustments to that 16 report, but in no way did he create a report for the

17 defense. And he is designated as an expert on one of 18 their designations. 19 MR. FELCMAN: That's correct. That's

20 correct. But the -- So she understands, the reason he 21 didn't create a report is because he told Pat McCann

22 what he would testify to and Pat McCann put that in his 23 statement, so that's the reason he asked for a report. 24 THE COURT: The essence of the argument is

25 the defense wants Mr. Murray stricken as an expert. The 6

1 State agrees -- 2 MR. FELCMAN: I'm not striking him as an

3 expert. I agree I'm not calling him as an expert.

4 THE COURT: The State's not going to call 5 him or offer his report?

6 MR. FELCMAN: That's correct. 7 MS. MARTIN: I'm also asking that no other 8 expert depend on what is in Mr. Murray's report when

9 they make their decision. 10 THE COURT: Do you know of any expert

11 that's adopted his report?

12 MS. MARTIN: Not that I know of. 13 THE COURT: Then we'll strike Dr. Murray

14 as an expert and grant the defendant's motion. 15 All right. Now, is there any other motion 16 except for the competency exam?

17 MS. MARTIN: I don't think so, Judge. 18 MR. FELCMAN: No, sir. 19 THE COURT: All right. We'll take up the

20 defendant's filing of a motion to address Mr. Turner's 21 current incompetency.

22 You may proceed, Ms. Martin. 23 MS. MARTIN: When the Court of Criminal 24 Appeals handed down their decision, there were two

25 steps: One was to determine feasibility of having a 7

1 retrospective competency trial. Only if that was 2 possible is there to be a retrospective competency

3 trial.

4 Our request is to have a hearing to 5 determine if it's feasible or not. To have a hearing,

6 all you need is some evidence. It doesn't necessarily 7 have to come from any particular source: A 8 psychologist, a psychiatrist, a person, documents.

9 There just has -- It just has to meet a level of some 10 information that supports an inference of incompetency.

11 We were never given the opportunity to

12 have a hearing to argue feasibility, also known as 13 Mr. Turner's current incompetency. We were never given

14 the opportunity to bring forth exhibits and bring forth 15 witnesses to argue: No, it's not feasible because he's 16 incompetent.

17 So what we're requesting now is to have 18 that hearing to show it's not feasible. The reason that 19 we believe that in this particular situation things are

20 going to be very different is because the Court of 21 Criminal Appeals looked at the evidence as it existed at

22 trial, and they found: Okay, there was enough here. 23 It's triggering a trial. 24 Now we have not only the information that

25 the Court of Criminal Appeals had during their opinion, 8

1 we now have so much more. We now have more bad 2 relationships with defense counsel; we have letters

3 where he exhibits paranoia; we have a diagnosis of

4 mental illness where he received what's the equivalent 5 of outpatient treatment. We have more evidence than the

6 Court had at the time when they decided there's enough 7 evidence to have a competency trial; therefore, it has 8 to be determined, given that evidence, if he today is

9 currently competent to have a retrospective trial 10 because like Green said, there has to be a base.

11 Due process is absolutely required for a

12 retrospective competency trial. That's all over the 13 place: U.S. Supreme Court, Fifth Circuit, Code --

14 Criminal Court of Appeals. Over and over, due process 15 has to be met. 16 Due process cannot be met with the current

17 situation that Mr. Turner is in. He will be sitting 18 there as if he has no attorney because his attorney will 19 be unable to engage with him whatsoever. Now we've

20 gotten to the point -- because, of course, we've always 21 been arguing the ability to interact and confer with

22 counsel. We're now at the point where he doesn't 23 understand the proceedings. 24 In a meeting with him, he referred to

25 everything as -- quote, unquote -- this competency shit. 9

1 He believes that this proceeding is meant to prevent him 2 from presenting a motion. We're not sure what the

3 motion is. We think it's a motion to recuse. And he

4 believes now he was brought to Fort Bend County to do 5 something and that -- but he wasn't able to come out

6 into the courtroom because they wanted to make sure he 7 didn't make a motion. 8 We tried to explain to him that you are

9 coming back because of your competency issue and you're 10 going to have a trial. He interpreted that as: Sure,

11 right, I'm no longer on death row. He does not

12 understand whatsoever, which is not surprising given the 13 complication that we're talking about the past.

14 So we've gone from you can't confer -- 15 meaningfully confer with your attorneys to he's not sure 16 what this is, which isn't surprising. Many of us on any

17 given day have had the same type of confusion, so it's 18 gone to the point of not only is he not going to talk to 19 me, I don't even know what questions to ask him to get

20 through to him because he doesn't understand what we're 21 doing. And for that reason, he has to be restored. He

22 has to be restored to competency so we can have the 23 retrospective competency trial that the Court of 24 Criminal Appeals demanded.

25 THE COURT: Mr. Felcman. 10

1 MR. FELCMAN: I don't understand the 2 argument. She, first of all, says she has all the

3 evidence she had at the time, plus additional evidence

4 now to show that he was incompetent at that time, and 5 that's what we're here for, the retrospective. Now

6 she's saying something additional, and I can't follow 7 the logic that somehow he disagrees and doesn't 8 understand what the competency hearing is for, but then

9 he turns around and says it's a competency hearing. 10 All we're here for today is whether it's

11 feasible to have a retrospective competency hearing, not

12 what he's like today or tomorrow or 20 years from now. 13 And the grounds for that are quite simple.

14 First of all, the passage of time, 15 although that's not a critical thing; but it has not 16 been a great passage of time. The State of Texas tries

17 cases dealing with mental states that are seven or eight 18 years old. 19 Second, the quality and quantity of the

20 evidence. The evidence they would have at the time of 21 the competency hearing two and a half years ago is the

22 very same ones they've got now: Pat McCann, Tyrone 23 Moncriffe. They also have access to any other doctor 24 they've got at that time. There is nothing, not one bit

25 of evidence they do not have now that they didn't have 11

1 back then. In fact, she said they had more. All this 2 really is is that -- I'm going to tell it -- is they did

3 not do what he wanted them to do; therefore, he will not

4 talk to them anymore. 5 The feasibility, in actuality, for you to

6 say it is not feasible to have a competency hearing, in 7 my opinion, would be actually an abuse of discretion 8 because she has not told you one bit why they don't have

9 the evidence to proceed. The fact is, if he's 10 incompetent now, that would actually help them out. The

11 logic is he has to be competent to have an incompetency

12 hearing is an Alice In Wonderland type of logic. We 13 would never try anybody then. Therefore, I'm asking you

14 just to deny it. If she doesn't think it's proper, let 15 her go ahead and take it up on appeal, and that's my 16 argument, Judge.

17 We have filed an answer. Also, we just 18 got this motion from her yesterday, but we filed an 19 answer previous to it. It set out exactly what the law

20 was. You properly ruled that it was feasible. We're 21 prepared to go, Judge.

22 MS. MARTIN: May I respond? 23 THE COURT: Uh-huh. 24 MS. MARTIN: That ruling that it was

25 feasible was without argument of counsel and without the 12

1 admission of evidence. It was a form that had been 2 filed in April and signed in September and faxed out.

3 There was no hearing or ability for everyone to come

4 together and say, This is what we have, where does 5 the -- where do we think he's at.

6 This has nothing to do with who it's 7 easier on or how many hours I get to work. He gets due 8 process. The only way to have due process is you're

9 competent. You have to be competent for a retrospective 10 competency trial. He's not.

11 MR. FELCMAN: I disagree. There is no

12 case that says that. 13 THE COURT: Well, let me address the first

14 issue of having no hearing to determine the 15 retrospective. I, in fact, conducted a hearing on 16 May 30th of '14 where I found that it was feasible to go

17 forward with the competency exam -- or feasible to go 18 forward with a retrospective competency hearing. I also 19 ordered at that time another competency exam with

20 Mr. Turner, and he refused to talk to the doctors that I 21 sent up to talk to him, so the feasibility issue has

22 already been decided. 23 As to his current competency on -- between 24 May 30th and July the 2nd in which the State asked me to

25 reconsider the motion to grant the additional competency 13

1 exam, he had an opportunity to speak to the doctor that 2 I have appointed to conduct the competency exam, so the

3 feasibility issue has been decided.

4 We're looking at his competency at the 5 time of the Trial on the Merits at the time that

6 Mr. McCann indicated to the Court he wanted a competency 7 hearing, which, in this Court's opinion, it conducted 8 because the Court did not find and still does not

9 believe Mr. McCann formally requested a jury competency 10 hearing, but the Court of Criminal Appeals has decided

11 to the contrary, and I will follow their instructions.

12 I'm not sure how the -- his current 13 competency relates back to his competency at the time of

14 trial. Now, I'm interpreting your argument to mean that 15 it's necessary that he be competent in order to confer 16 with counsel to go through the retrospective competency

17 hearing. It raises certainly a question, but all the 18 evidence that is going to be produced is his competency 19 at the time of the Trial on the Merits of this case

20 which has nothing to do with his current competency, so 21 I'm going to deny your motion to --

22 MS. MARTIN: May I respond briefly, Judge? 23 THE COURT: -- address his current 24 competency.

25 And you can put what you want on the 14

1 record. 2 MS. MARTIN: The one -- I may be not

3 making the connection with the current competency, but a

4 retrospective competency trial requires due process, end 5 of story. Due process requires competency, end of

6 story. So regardless of what proceeding we're entering 7 into, he has to be competent. 8 By way of example, he doesn't understand

9 what proceeding he's going to be sitting in, and if we 10 flash something on this -- For example, the State gave

11 us pictures of his cell at T.D.C.J. I look at it; I see

12 what's on there; I turn to my client to say, Hey, can 13 you explain me -- explain to me what that's about.

14 THE COURT: And how does his picture of 15 his cell at T.D.C.J. have any relation to his competency 16 at the time of the Trial on the Merits of this case?

17 MS. MARTIN: The State submitted it. I'm 18 not sure. 19 MR. FELCMAN: We just turned over

20 everything possible. I'm not going to be stuck where, 21 Oh, no, we didn't turn over something they could use.

22 We turned over everything. 23 MS. MARTIN: It's in their motion. 24 THE COURT: I may not like asking this

25 question, but I sent a professional up to interview 15

1 Mr. Turner subsequent to the hearing on the 30th of May. 2 Has that -- Other than the fact that he reported that

3 Turner wouldn't talk to him, was there any evaluation

4 created by that professional? Is that the Dr. Murray 5 that we're talking about?

6 MS. MARTIN: Oh, no. Dr. Murray's not 7 qualified to do competency. 8 THE COURT: Okay. I sent somebody up

9 there to do that, report back -- 10 MS. MARTIN: Dr. Self maybe? Oh, no,

11 Dr. Mohler.

12 THE COURT: The report I got back was that 13 Turner refused to talk to him. Did he make any kind of

14 finding? 15 MS. MARTIN: Not that I'm aware of. 16 MR. FELCMAN: No.

17 THE COURT: So we're right back to where 18 we were on the original competency hearing or competency 19 situation at the time of the trial which we're going to

20 have the feasibility on is he still won't talk to any 21 professionals, so I'm not -- We're going in a circle. I

22 want to give Mr. Turner all of his rights, but there's 23 nothing that at this point that would change -- that 24 you've shown me that would change my position on a

25 decision I've already made, that's it's feasible to have 16

1 the retrospective competency hearing. 2 MR. FELCMAN: Thank you, Judge.

3 THE COURT: Off the record.

4 5

25 17

4 the 268th District Court of Fort Bend County, State of 5 Texas, do hereby certify that the above and foregoing

6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in

9 this volume of the Reporter's Record in the above-styled 10 and numbered cause, all of which occurred in open court

12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits,

14 if any, offered by the respective parties. 15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $138.00 and

17 will be paid by Fort Bend County. 18 WITNESS MY OFFICIAL HAND this, the 20th day of

19 January, 2015.

20 /s/Mindy R. Hall______________ 21 Mindy R. Hall, CSR Texas CSR 8107 22 Official Court Reporter 301 Jackson 23 Richmond, Texas 77469 Telephone: 281.341.8611 24 Expiration: 12/31/2016

25 17/6 17/10 cell [2] 14/11 14/15 $ already [2] 12/22 15/25 certainly [1] 13/17 $138.00 [1] 17/16 also [5] 6/7 7/12 10/23 11/17 12/18 certify [3] 17/5 17/12 17/15 although [1] 10/15 CHAD [1] 2/3 ' always [1] 8/20 chambers [1] 17/11 '14 [1] 12/16 AMY [3] 2/8 2/9 4/6 change [2] 15/23 15/24 Amymartinlaw [1] 2/11 circle [1] 15/21 / announcements [1] 4/5 Circuit [1] 8/13 /s/Mindy [1] 17/20 another [1] 12/19 client [1] 14/12 answer [2] 11/17 11/19 Code [1] 8/13 0 any [10] 6/10 6/15 7/7 9/16 10/23 14/15 come [3] 7/7 9/5 12/3 00790369 [1] 2/4 15/3 15/13 15/20 17/14 coming [1] 9/9 054233 [1] 1/2 anybody [1] 11/13 competency [39] 06881500 [1] 2/2 anymore [1] 11/4 competent [6] 8/9 11/11 12/9 12/9 13/15 anything [1] 4/20 14/7 1 AP [1] 1/2 complication [1] 9/13 10-DCR-054233 [1] 1/2 AP-76,580 [1] 1/2 computerized [1] 1/16 12/31/2016 [1] 17/24 appeal [1] 11/15 conduct [1] 13/2 16 [2] 1/12 3/4 Appeals [6] 6/24 7/21 7/25 8/14 9/24 conducted [2] 12/15 13/7 13/10 confer [4] 8/21 9/14 9/15 13/15 2 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that [62] point [4] 8/20 8/22 9/18 15/23 said on [1] 5/6 that's [11] 5/19 5/19 5/23 6/6 6/11 8/12 portions [1] 17/7 same [2] 9/17 10/22 10/5 10/15 11/15 14/13 15/25 we [27] T we'll [2] 6/13 6/19 their [6] 5/18 6/9 6/24 7/25 13/11 14/23 we're [15] 4/2 7/17 8/22 9/2 9/13 9/20 them [4] 4/15 11/3 11/4 11/10 10/5 10/10 11/20 13/4 14/6 15/5 15/17 then [4] 6/13 10/8 11/1 11/13 15/19 15/21 there [13] 6/15 6/24 7/2 7/9 7/22 8/10 we've [3] 8/19 8/20 9/14 8/18 10/24 12/3 12/11 14/12 15/3 15/9 Well [1] 12/13 there's [2] 8/6 15/22 were [5] 6/24 7/11 7/13 15/18 17/11 therefore [3] 8/7 11/3 11/13 what [19] they [12] 6/9 7/22 8/6 9/6 10/20 10/23 what's [2] 8/4 14/12 10/25 10/25 11/1 11/2 11/8 14/21 whatsoever [2] 8/19 9/12 They're [1] 5/14 when [3] 6/8 6/23 8/6 they've [2] 10/22 10/24 where [8] 8/3 8/4 8/22 12/4 12/5 12/16 thing [1] 10/15 14/20 15/17 things [1] 7/19 whether [1] 10/10 think [4] 6/17 9/3 11/14 12/5 which [7] 9/12 9/16 12/24 13/7 13/20 this [23] 15/19 17/10 through [2] 9/20 13/16 who [2] 5/14 12/6 time [14] 8/6 10/3 10/4 10/14 10/16 why [1] 11/8 10/20 10/24 12/19 13/5 13/5 13/13 will [5] 8/17 8/18 11/3 13/11 17/17 13/19 14/16 15/19 without [2] 11/25 11/25 titled [1] 1/13 WITNESS [1] 17/18 today [3] 8/8 10/10 10/12 witnesses [1] 7/15 together [1] 12/4 won't [1] 15/20 told [2] 5/21 11/8 Wonderland [1] 11/12 tomorrow [1] 10/12 work [1] 12/7 total [1] 17/15 would [7] 5/22 10/20 11/7 11/10 11/13 transcription [1] 17/6 15/23 15/24 Travis [1] 2/10 wouldn't [1] 15/3 treatment [1] 8/5 write [1] 5/14 trial [17] 1/2 7/1 7/3 7/22 7/23 8/7 8/9 writing [1] 17/8 8/12 9/10 9/23 12/10 13/5 13/14 13/19 14/4 14/16 15/19 Y tried [1] 9/8 years [3] 10/12 10/18 10/21 tries [1] 10/16 Yes [2] 4/12 5/11 triggering [1] 7/23 yesterday [1] 11/18 true [1] 17/6 you [15] 4/20 6/10 6/22 7/6 9/8 9/14 truly [1] 17/13 11/5 11/8 11/13 11/20 12/9 13/25 13/25 try [1] 11/13 14/13 16/2 turn [2] 14/12 14/21 you're [3] 4/10 9/9 12/8 turned [2] 14/19 14/22 you've [1] 15/24 TURNER [10] 1/5 4/3 4/7 4/11 8/17 your [6] 4/5 5/9 9/9 9/15 13/14 13/21 12/20 15/1 15/3 15/13 15/22 Turner's [2] 6/20 7/13 turns [1] 10/9 two [2] 6/24 10/21 type [2] 9/17 11/12 Tyrone [1] 10/22 U U.S [1] 8/13 Uh [1] 11/23 Uh-huh [1] 11/23 unable [1] 8/19 understand [6] 8/23 9/12 9/20 10/1 10/8 14/8 understands [1] 5/20 unquote [1] 8/25 until [1] 5/13 up [5] 6/19 11/15 12/21 14/25 15/8 us [4] 5/1 5/1 9/16 14/11 use [1] 14/21 V very [2] 7/20 10/22 volume [4] 1/1 1/1 3/2 17/9 W waiving [1] 4/11 want [2] 13/25 15/22 wanted [3] 9/6 11/3 13/6 wants [1] 5/25 was [21] wasn't [1] 9/5 way [3] 5/16 12/8 14/8 Exhibit F CAUSE NO. 10-DCR-054233

THE STATE OF TEXAS § IN THE DISTRICT COURT OF

V. § FORT BEND COUNTY, TEXAS

ALBERT JAMES TURNER § 268TH JUDICIAL DISTRICT

MOTION TO ADDRESS MR. TURNER’S CURRENT INCOMPETENCY

Mr. Turner is currently incompetent making it, at this time, unfeasible to conduct a retrospective competency trial without violating his right to Due Process. The court must:

1. Conduct a current competency trial; or 2. Send Mr. Turner to an appropriate state or federal psychiatric facility for competency restoration; or 3. Rule the retrospective competency trial unfeasible

*****

Albert Turner, by and through his attorney of record, and pursuant to the 5th, 6th, 8th & 14th Amendments to the United States Constitution and Article 1, sections 3, 10, 13 & 19 of the Texas Constitution, Article 39.14 of the Texas Code of Criminal Procedure, makes this motion.

1. On May 31, 2011, Defendant was convicted of capital murder and on June 7, 2011 he was sentenced to death.

2. On October 30, 2013, the Court of Criminal Appeals sustained the Defendant’s ninth point of error, abated the appeal, and remanded the case, directing the trial court to first determine if a retrospective competency trial is feasible. If it is, the court shall conduct a retrospective competency trial.

3. A retrospective competency trial is not feasible, at this time, because of Mr. Turner’s current incompetency. A retrospective competency trial is only feasible if an individual’s due process rights are protected. Drope v. Missouri, 420 U.S. 162, 183 (1975).

4. Mr. Turner must be able to assist his counsel during the retrospective competency trial and he is not currently capable of doing that. Greene v. State, 264 S.W.3d 271, 272 (Tex. App.—San Antonio 2008).

5. The Court of Criminal Appeals remanded the case because Mr. Turner was denied a competency trial at a point when he should have been granted one. Just like at trial, an informal inquiry has been initiated here. All of the evidence of incompetency must be examined (and all evidence of competency disregarded) to decide if there is some evidence that may lead to a conclusion of incompetency. There is a scintilla of evidence of Mr. Turner’s incompetency and the law requires a current competency trial.

6. The Court of Criminal Appeals held that there was enough evidence as of August 8, 2011 to warrant a retrospective competency trial. Now, 3 years later, the evidence of incompetence has become more voluminous. There have been additional mental health interventions and expressions of Mr. Turner’s paranoid delusions. Turner at 696.

7. The Court must conduct a current competency trial to determine if Mr. Turner is competent right now, so that a retrospective competency trial can be conducted within the bounds of Due Process.

8. Alternatively, the Court should send Mr. Turner to an appropriate state or federal psychiatric facility for competency restoration to ensure any subsequent proceeding is Constitutional.

9. Alternatively, the Court should rule a retrospective competency trial unfeasible, and forward the findings to the Court of Criminal Appeals in accordance with its opinion.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court conduct a current competency trial; or, in the alternative, send Mr. Turner to an appropriate state psychiatric facility for competency restoration; or, alternatively, rule the retrospective competency trial unfeasible.

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

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

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing motion has been sent to Fred Felcman, counsel for the State, on January 15, 2015.

Robert A. Morrow ________________________________ ROBERT MORROW CAUSE NO. 10-DCR-054233

ORDER ON MOTION TO ADDRESS MR. TURNER’S CURRENT INCOMPETENCY

Before the court is the Defendant’s Motion to Address Mr. Turner’s Current Competency.

After considering the motion, the evidence, and the arguments of the parties, it is the opinion

of the Court that:

____There must be a current competency trial conducted in accordance with Article

46B of the Texas Code of Criminal Procedure.

____Mr. Turner will be sent to an appropriate state or federal psychiatric facility in

order to be restored to competency.

____The retrospective competency trial is unfeasible and the findings and records

generated since the remand should be forwarded to the Court of Criminal Appeals.

Signed this the _________________________, 2015.

_____________________________ JUDGE PRESIDING CAUSE NO. 10-DCR-054233

DEFENDANT’S BRIEF IN SUPPORT OF THE MOTION TO ADDRESS MR. TURNER’S CURRENT INCOMPETENCY

Mr. Turner is currently incompetent making it, at this time, unfeasible to conduct a retrospective competency trial without violating his right to Due Process. The court must:

1. Conduct a current competency trial; or 2. Send Mr. Turner to an appropriate state or federal psychiatric facility for competency restoration; or 3. Rule the retrospective competency trial unfeasible

******

The Texas Court of Criminal Appeals held that it was error to deny Mr. Turner a competency trial and provided clear instructions for remedying that error:

Accordingly, we sustain the appellant's ninth point of error, abate the appeal, and remand the cause to the trial court. 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), reh'g denied (Apr. 2, 2014).

Feasibility comes first

A retrospective competency trial is only feasible if an individual’s due process rights are protected. Drope v. Missouri, 420 U.S. 162, 183 (1975). 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).

The Court of Criminal Appeals has 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).

Some of these difficulties include passage of time, present recollection of expert witnesses who previously testified, and ability of the judge and jury to observe the defendant. Caballero at 743. However, such a determination can be made within the limits of due process depending upon the quality and quantity of the evidence available. Barber v. State, 737 S.W.2d 824, 828 (Tex. Crim. App. 1987).

The Court of Criminal Appeals has held that “if the pre-trial competency hearing was not held and should have been, or was improper for some reason and merited a new hearing, the appeal would be abated and a retrospective competency hearing could be held.” Huff v. State, 807 S.W.2d 325, 326 (Tex. Crim. App. 1991); See also Ex parte Garrett, No. WR-75,447- 01, 2011 WL 2382572, at *1 (Tex. Crim. App. June 8, 2011).

No competency, no Due Process

Mr. Turner’s current competency is one of several “pertinent considerations” that the Court of Criminal Appeals has required the trial court to examine. Mr. Turner must be able to assist his trial counsel. Greene v. State, 264 S.W.3d 271, 272 (Tex. App.—San Antonio 2008). If he cannot assist his counsel, his Constitutional right to Due Process will be violated. In Greene, the Court of Appeals held:

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 at 273.

Page 2 of 13 Court of Criminal Appeals’ instructions on what not to do

The Court of Criminal Appeals was clear about what factors led to its decision that a competency trial should have been conducted during Mr. Turner’s trial; those factors are still present and now there is additional evidence indicating (1) Mr. Turner must be restored to competency or (2) that the threshold is met to require a current competency trial. Texas Code of Criminal Procedure 46B.004(c).

The Court of Criminal Appeals held that the appointment of Dr. Connie Almeida during trial was evidence that the trial court “was obviously persuaded” that there was a bona fide doubt as to Mr. Turner’s competency. Turner at 692.

After remand, when the parties met in court to discuss the retrospective competency trial, defense counsel requested an evaluation for current competency. The trial court ordered that Mr. Turner be evaluated for current competency. This decision is identical to the one to appoint Dr. Almeida at trial and, likewise, it shows that the court “was obviously persuaded” that there was a bona fide doubt as to Mr. Turner’s current competency.

The Court of Criminal Appeals explained how to proceed from this point on to determine if a competency trial is required:

The question therefore becomes whether, in light of what became known to the trial court by the conclusion of this informal inquiry, it should have conducted a formal competency trial. The answer depends upon whether “some evidence from any source” had arisen by that time “that would support a finding that [the appellant] may be incompetent to stand trial.” In making this determination, a trial court must consider only that evidence tending to show incompetency, “putting aside all competing indications of competency, to find whether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetency.” If so, then “evidence exists to support a finding of incompetency,” and the statutory scheme requires the trial court to conduct a formal competency trial.

Turner at 692-93. (footnotes omitted)(emphasis added).

Consider only evidence of incompetency

Page 3 of 13 First, the trial court focused erroneously on evidence of competency rather than evidence of incompetency, relying upon the ultimate conclusions of Drs. Gollaher and Axelrad, as well as Dr. Almeida's subsequent opinion that the appellant's cognitive functioning had not significantly changed in the interim.

Turner at 694.

No change needed

Second, the trial court erred to the extent that it denied the appellant's request for a formal competency trial on the grounds that the appellant failed to demonstrate any “change” of status since the earlier findings of competency by Gollaher and Axelrad. There was no adjudication of the competency issue in the summer of 2010 following their evaluations—not even an informal inquiry to decide whether there was sufficient evidence at that time to invoke a formal competency trial. Thus, there was no prior judicial competency determination to justify a requirement of a change in circumstances.

Turner at 694-695.

Right now, prior to the retrospective competency trial, considering only the evidence tending to show incompetency, is there more than no evidence that rationally might lead to a conclusion of incompetency? The answer is “yes.”

The Court of Criminal Appeals has remanded this case because, at trial, the answer was also “yes” and the request for a competency trial was denied. If Mr. Turner’s request for a current competency trial is denied, it will be the same error and we will be brought back to this point again.

All evidence of incompetency allowed

The only limit on the evidence that a court may consider when determining the necessity of a competency trial is that it must be evidence of incompetency. Some examples are found in Tex. Crim. Proc. Code Ann. art. 46B.024, the statute that addresses competency evaluations. Some of the items listed include a defendant’s capacity to “disclose to counsel pertinent facts, events, and states of mind;” “engage in a reasoned choice of legal strategies and options;” and “testify.” The statute also requires an expert to consider “whether the defendant has a mental illness.” Experts are also directed that they “shall consider . . . other

Page 4 of 13 issues determined relevant by the expert.”

Court of Criminal Appeals’ compelling evidence

The Court of Criminal Appeals provided several examples of evidence that it believes warranted conducting a competency trial:

Evaluations of Dr. Axelrad and Dr. Gollaher:

Both of the [their] competency reports reflect the substantial possibility that he was suffering from paranoia that may have been the product of “a paranoid disorder,” and that he was apparently exhibiting delusions. Gollaher expressly found that the appellant had a factual understanding of the proceedings and could “communicate events in an understandable manner and can report his state of mind.” But her report did not speak specifically to whether his condition would adversely affect his capacity either to “engage with counsel in a reasonable and rational manner[,]” or to “engage in a reasoned choice of legal strategies and options[.]” Axelrad's report did speak to those capacities and, in fact, he found the appellant to be “mildly impaired” with respect to both. Axelrad noted that, “[i]n the event [that the appellant] has a paranoid disorder, this may be contributing to the problems he is experiencing with his attorney.” Notwithstanding the experts' ultimate conclusions that the appellant was competent, the trial court was effectively put on notice of the need to maintain vigilance to assure that the appellant's due process rights were preserved.

Turner at 693-94.

Attorney’s reports of Mr. Turner’s paranoia and lack of communication

The appellant's paranoia had progressed to the point that, if the representations of his own lawyers are to be credited, he believed that they were openly conspiring with the prosecutors to secure his conviction. He flatly refused to communicate with them during the voir dire proceedings.

Mr. Turner’s ongoing delusions

By May of 2011, there had arisen new evidence in the form of the appellant's obviously irrational belief that his ongoing delusion with respect to the Mayor of Kendleton somehow provided him with a defense to prosecution for capital murder that was preferable to the approach that his trial lawyers urged him to pursue. That the appellant persisted in this delusion-fueled belief against the

Page 5 of 13 emphatic advice of counsel, together with the earlier suggestions that he suffered from a paranoid disorder, was enough to raise the likelihood of incompetency to a level beyond that which is evinced by a mere dispute between an ordinarily obstinate defendant and his legal counsel over plausible trial strategies.

Turner at 695.

Additional evidence of incompetency discovered since the Mr. Turner’s trial

Mental Health History

In the Court of Criminal Appeals’ opinion, it is noted that Mr. Turner did not have any mental health history. Id. at 693. Now, that is not the case. In October of 2011, he was transferred to the Skyview Unit of TDCJ for mental health treatment1.

Mr. Turner was moved to a psychiatric unit because he had not eaten in 9 days, was hoarding his blood pressure medication, and had not showered in a month. He was “unshaven and disheveled . . . quiet and sullen.” He had also given away all of his things (commissary).

He was dysphoric, had “some mental confusion,” and received a diagnosis of Major Depressive Disorder. In August of 2011, in a mental health interview, Mr. Turner “reported that he is not mentally ill and just wanted to make that clear.” He expressed concern that his letters were not being sent to his sister. The notation also includes the statement: “Pt. reported that he doesn't trust his lawyers and is willing to let the clock run out on his appeals process due to this fact.”

Mr. Turner later discussed his case and the file notes reflect:

He informs there is no evidence against him except for circumstantial evidence as the blood in the house and in his own car was not any of his, and the blood in the car was not the victims. He weaves a tale of a conspiracy beginning at Kendelton with the Police Chief and Mayor (who was caught in a relationship with his wife that resulted in wife having Mayor's child and getting strung out on heroin). TDCJ, judge, Kendelton officials, private school where his children attend (which was founded by his in-laws and in bylaws indicates continued free education for his children), and even his own lawyer are

1 All of the information related to TDCJ is in Mr. Turner’s records.

Page 6 of 13 involved in this conspiracy by withholding evidence of witnesses he was unable to confront due to having been videoed versus live covering up of motions, tying up his retirement monies in order to keep him from paying for a 'real' lawyer. He has refused to sign a document in relation to Habeas Corpus due to once signed there is no going back.

The impressions documented by the mental health provider are:

He has a recurring theme of 'out to get him'. One person being out to get someone is believable, but the more people involved the less believable it becomes. With Mr. Turner, he does not only have several different individuals involved, but several different agencies of government. His reasoning for conspiracy involving the judge includes a photo in a newspaper in which the judge was seen shaking hands with the Mayor of Kendelton with the Police Chief looking on and a situation in the court room whereby a motion that had been filed by his sister was in question and he was to verify his knowledge of same and he had already done so and was physically forced to place his thumb print on the document. The conspiracy involves several departments within TDCJ and across units as well. He appears to be more paranoid than anything, but this involves a close look at the whole situation. If he is treated for paranoia this could be misconstrued to the paranoid mind as an attempt to help in the conspiracy against him.

Not all of the relevant documentation is so detailed. One entry states: “Refuses to sign refusal - something to do with his case and DNA and attorneys, so SO and Med signed as witnesses.” Even though some of the notes are cryptic, it is clear that contextually, they point to Mr. Turner’s current incompetency.

Subsequent to trial, the trial court treated Mr. Turner as if he was incompetent

Mr. Turner did not want his trial counsel to turn his file over to the Office of Capital Writs (“OCW”), his attorneys for his habeas proceedings. Therefore, he would not sign a release. There were 2 hearings on the issue, one of which Mr. Turner was present for, and repeatedly informed the court he did not want to sign the release at that time.

Mr. Turner’s choice to not release his files was ignored and, instead, the trial court signed an order for Mr. McCann to give the files to the OCW stating: “the focus of this hearing is what is best for Mr. Turner, and, as such, will order that the files be transferred.” (RR67, 52).

Page 7 of 13 The Court of Criminal Appeals, reviewing the trial court’s actions, stated: “Assuming Turner is legally competent (as the trial court found in this case), he is entitled to choose not to turn over his trial file; and McCann, as Turner's former counsel and agent, must honor that decision for the reasons that we have explained.” In re McCann, 422 S.W.3d 701, 709 (Tex. Crim. App. 2013). When someone is legally competent, “they can define his or her own best interests, and that decision will control.” Id. at 707.

The action of signing the order commanding trial counsel to relinquish Mr. Turner’s file because it was in his best interest is evidence that he is presenting as an incompetent person. The Court of Criminal Appeals’ held that such an order could only be signed if Mr. Turner was incompetent.

“Delusion-fueled belief” persists and prevents effective assistance at all levels

The Court of Criminal Appeals repeatedly refers to evidence of the attorney-client relationship as presented by the attorneys. Turner at 694. Now, there is evidence of the same paranoia that the Court discussed interfering with subsequent attorney-client relationships. “Generally, the close interaction presumed by the lawyer/client relationship makes trial counsel the best source of information about a defendant's competency.” Aldridge v. Thaler, No. CIV.A. H-05-608, 2010 WL 1050335, at *6 (S.D. Tex. Mar. 17, 2010)

Appellate counsel

Mr. Turner has refused all correspondence from his appellate attorneys and has also refused visits from the attorneys and any of their representatives while he has been housed on death row.

Earlier this month, appellate counsel tried twice to meet with Mr. Turner in the Fort Bend County Jail. The first attempted visit resulted in Mr. Turner telling the deputies “I don’t have lawyers.”

The next attempt included appellate counsel and an expert doctor. Mr. Turner refused to

Page 8 of 13 come out and jail personnel escorted both individuals back to his cell to speak to him through the cell window. The doctor introduced himself, Mr. Turner briefly looked up, was non- responsive, and stared at the floor. Mr. Turner was told that the doctor was court appointed. When appellate counsel attempted to speak with him; the response was the same.

Writ counsel

The Office of Capital Writs, Mr. Turner’s first habeas counsel, spent a lot of time with him after they were appointed. Specifically, over 3-4 months they visited with him 11 times. (RR67, 40). However, the visits were brief because Mr. Turner became paranoid and ended the visits when the lawyers began talking about their representation. OCW filed a “Motion to Bring Mr. Turner Back to Court to Determine if he Wishes to Proceed Pro Se; or in the Alternative, Request this Court Order a Competency Evaluation of Mr. Turner.”

In an effort to attempt to help Mr. Turner understand why he needed to sign a release for his lawyers, OCW brought his mother and sister in from Florida the day before Christmas Eve to visit with him in Skyview, a TDCJ mental health unit. His sister Juanita believed she could convince him to sign the release. Even after four hours with him, Mr. Turner would not sign the release for OCW (“the state” as he referred to it). Juanita reported that Mr. Turner said he wanted a writ filed, but not by OCW. But, he seemed to understand that no other counsel would be appointed and that time was running out. Even after the long visit with his family, Mr. Turner refused to visit with counsel from OCW.

Ultimately, because the trial court would not grant its motion for a competency evaluation, OCW filed a “Motion to Bring Mr. Turner Back to Court to Determine if he Wishes to Proceed Pro Se; or in the Alternative, Request this Court Order a Competency Evaluation of Mr. Turner.” Both requests were denied and the OCW withdrew as Mr. Turner’s habeas counsel. (RR68, 6).

Page 9 of 13 New writ counsel

The court then appointed James Rytting and he had the same difficulty with Mr. Turner. He filed an affidavit stating that he had visited Turner in person at the Polunsky Unit twice and had attempted to meet him on other occasions. He also stated that Turner accepted file- release forms from him, and Turner told Rytting that he would think about executing them. In re McCann, 422 S.W.3d 701, 703 (Tex. Crim. App. 2013).

My lawyers are trying to kill me

At Polunsky, Mr. Turner was not able to make phone calls. While at Fort Bend County Jail, he spoke several time to his family and those conversations were recorded and the state has provided more than hours of recordings. Those calls provide the best insight into Mr. Turner’s ability to consult with his lawyer and his lack of understanding of these proceedings. A universal theme of Mr. Turner’s paranoia is his lawyers being corrupt and working with the government, judge, and prison to keep him quiet.

Mr. Turner’s first attempted call was to his sister, who he considers his legal liaison. He could not reach her. Then, when he finally gets to speak to his mother for the first time in years, he immediately begins to talk about how his letters to his family are being held whenever he sends something with legal information in it. He rapidly described how his lawyers and the judge were trying to stop his Due Process.

Does not understand the proceeding

Mr. Turner believes that the competency trial is an attempt to “derail him” from filing his motion. He refers to it as the “competency crap.” He has no understanding of the fact that this proceeding has nothing to do with his current competency and that the outcome will not affect his sister’s ability to file motions on his behalf.

It is unclear what the motions are, but he’s hoping they mess the lawyers up because they are corrupt. He’s in a hurry to file the motions because he believes his attorneys will shut him down when they find out he’s doing it.

Page 10 of 13 His paranoia makes him believe that his attorneys want to keep him quiet and they’re trying to kill him because that’s how the system works.

Decompensated to double the trouble

The emphasis in the appeal and remand was Mr. Turner’s incompetence under Texas Code of Criminal Procedure Art. 46B.003 (a)(1)-- he did not have the “sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding.” Mr. Turner still lacks that ability as evidenced by his incapability of stepping out of his delusion to even acknowledge his defense team or a psychological expert.

However, the current circumstances illustrate that Mr. Turner does not have a “rational as well as factual understanding of the proceedings against” him. Art. 46B.003(a)(2).

A retrospective competency trial is a complicated and rare proceeding in which most experienced criminal defense attorneys will never participate. In this case, novel issues have arisen; even the mechanics of the process are confusing. Mr. Turner does not have “a rational as well as factual understanding of the proceedings against” him without having a sufficiently rational conversation with counsel.

To be legally competent he must be able to understand what fact is at issue in this proceeding, who has the burden of proof, what the potential outcomes are for him, the roles of his attorneys, the Judge and the prosecutors, the applicability of his Constitutional rights to confrontation, counsel, and to testify. Mr. Turner’s paranoid delusions prevent him from interacting with counsel and foreclose any chance of a rational understanding of the proceedings against him.

Behaviors that constitute a scintilla

In addition to mental health treatment, Mr. Turner has gone on hunger strikes at different times during his incarceration. He also refuses to sign anything or submit a fingerprint. At one point he believed his blood pressure medicine was actually psychiatric medicine. He

Page 11 of 13 believes that Captain Brownfield at the Fort Bend County Jail is the reason his Due Process is being violated. He believes he was being kept in separation to prevent him from completing his “motion”. And, if he were able to complete it, he would have to be left out.

“Particular cause for concern”—Defendant testifying

The Court of Criminal Appeals made it very clear that the most troublesome aspect of Mr. Turner’s case was the fact that he testified and he may have been incompetent when he did so. And we think there is particular cause for concern when a defendant's mental impairment directly touches upon certain fundamental decisions that the criminal justice system reserves for him to make personally—albeit after “engaging” meaningfully with counsel—such as whether to testify in his own defense. Precisely because the defendant retains ultimate authority over these decisions, it is critical that he be able “to consult with counsel with a reasonable degree of rational understanding” about them.

Turner 690-91.

The Court accurately described Mr. Turner as a person that “persisted in this delusion-fueled belief against the emphatic advice of counsel.” Id. at 695. And while Due Process requires an understanding and ability to invoke all Constitutional rights, the right to remain silent is paramount. "Most critically, he may well have been incapable of making a rational, non- delusional decision with respect to whether or not to accept his trial counsel's advice not to testify.” Id.

Without an attempt to restore Mr. Turner to competency, this scenario that the Court of Criminal Appeals found so alarming may repeat itself.. Mr. Turner may choose to exercise his right to testify in this trial and he would be utterly clueless about what he could or should testify about. Of course, counsel would advise him against taking the stand, but given his inability to understand the proceedings and consult with counsel, he would forge ahead to his detriment, just as he did at trial. If the competency trial is flawed in such a way that the Court of Criminal Appeals believes 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).

Page 12 of 13 Something has to be done

 The court must conduct a current competency trial to determine if Mr. Turner is competent so that a retrospective competency trial can be conducted within the bounds of Due Process.

 Alternatively, the court should send Mr. Turner to an appropriate state or federal psychiatric facility for competency restoration so that there can be a constitutionally sound retrospective competency trial.

 Alternatively, the court must rule a retrospective competency trial unfeasible, and forward findings to the Court of Criminal Appeals in accordance with the opinion.

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

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

Page 13 of 13 Exhibit G AP-76580 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/7/2014 11:40:36 AM Accepted 7/7/2014 1:22:39 PM ABEL ACOSTA NO. AP-76,580 CLERK

ALBERT JAMES TURNER § IN THE

VS. § COURT OF CRIMINAL APPEALS

THE STATE OF TEXAS § STATE OF TEXAS

STATE’S MOTION FOR ENFORCEMENT OF THE TRIAL COURT’S LIMITED JURISDICTION ON REMAND

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

On remand of this case, the trial court ordered the parties to each provide the

name of a psychiatrist to evaluate Albert James Turner for competency to stand a

retrospective competency trial. The State of Texas, by and through its District

Attorney, 268th Judicial District, Fort Bend County, Texas, moves this Court to

enforce the limited jurisdiction of the trial court on remand 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. 2013).

I.

Procedural History

On May 31, 2011, a jury convicted Appellant of capital murder, committed on

or about December 27, 2009. [58 RR 1, 6] On June 7, 2011, Turner was sentenced

1 to death. On direct appeal, this Court abated Turner’s appeal and remanded this case

to the trial court to “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, 422 S.W.3d at 696. If a

retrospective competency trial is feasible, the trial court “shall proceed to conduct

such a trial in accordance with Chapter 46B, Subchapter C, of the Code of Criminal

Procedure.” Id. at 697.

The trial court held a procedural and scheduling hearing on May 30, 2014. At

that hearing, Turner’s attorneys presented the court and the State with Greene v.

State, 264 S.W.3d 271 (Tex. App.--San Antonio, 2008, pet. ref’d), and urged the trial

court to have Turner examined for his contemporary competency to stand trial. The

attorneys argued that Turner’s contemporary competency was relevant to the court’s

determination of feasibility because Turner should be competent at the retrospective

competency trial to assist counsel in proving he was incompetent when his trial was

held in April-June 2011.

The State was unaware of the Greene opinion, but Turner’s attorney accurately

stated its holding.1 In an abundance of caution, the trial court ordered both parties to

1 A copy of Greene v. State, 264 S.W.3d 271 (Tex. App.--San Antonio, 2008, pet. ref’d), is attached as Exhibit A to this motion. The petition for discretionary review of the Bexar County District Attorney’s Office did not question

2 suggest a psychiatrist to evaluate Turner’s contemporary competency. The trial judge

stated on the record that he did not believe Turner was incompetent at trial and did

not believe that Turner was incompetent now, but would appoint the psychiatrists to

evaluate Turner out of an abundance of caution in light of Greene.

On June 9, 2014, the trial court appointed Dr. Mary Alice Conroy to evaluate

Turner for contemporary competency. [Exhibit C, copy of the order]

On July 1, 2014, the State filed a motion for reconsideration of the trial court’s

order to have Turner evaluated for contemporary competency. [Exhibit D, copy of

the motion] On July 2, 2014, the trial court denied the motion as not having been

raised in the original hearing. [Exhibit E, copy of the order]

II.

Greene is unsupported by authority and there is none to require contemporary competence at a retrospective hearing.

The Greene court’s requirement that a defendant be competent to assist counsel

at the retrospective competency is unsupported by authority. The State has not found

a case from this Court where a defendant’s contemporary competency is listed as a

factor to consider in determining whether a retrospective competency hearing is

contemporary competency, but focused on whether a retrospective hearing should have been ordered in the first place. The issues raised are attached as Exhibit B to this motion.

3 feasible. See, e.g., Hawkins v. State, 660 S.W.2d 65, 84-85 (Tex. Crim. App. 1983)

(citng Brandon v. State, 599 S.W.2d 567, 573-74 (Tex. Crim. App. 1979), vacated on

other grounds 453 U.S. 902 (1981) (considerations include the “passage of time,

present recollection of expert witnesses who testified at the original hearing, and

ability of the judge and jury to observe the subject of their inquiry,” but finding that

“[r]etrospective determinations are possible depending upon the facts of each case

and the quality and quantity of evidence available”); Cabellero v. State, 587 S.W.2d

741, 743 (Tex. Crim. App. 1979) (retrospective competency determination is feasible

three years later when defendant’s relatives and expert witnesses and their records of

psychological testing are available to again testify about the defendant’s competency).

The State has not found a case from the high court of any other jurisdiction

requiring a defendant to be presently competent to assist counsel at a retrospective or

nunc competency hearing. See e.g., Blakeney v. United States, 77 A.3d 328, 349

(D.C. Cir. 2013) (relevant to determining the feasibility of a postjudgment hearing on

a defendant’s mental competence are: “(1) [t]he passage of time, (2) the availability

of contemporaneous medical evidence and prior competency determinations, (3) any

statements by the defendant in the trial record, and (4) the availability of individuals

and trial witnesses, both experts and non-experts, who were in a position to interact

with [the] defendant before and during trial”); People v. Ary, 246 P.3d 322, 329 n.3

4 (Cal. 2011), cert. denied 132 S.Ct. 136 (2011) (same); Edwards v. State, 902 N.E.2d

821, 826 (Ind. 2009) (same); Maynard v. Boone, 468 F.3d 665, 674-75 (10th Cir.

2006), cert. denied 549 U.S. 1285 (2007) (same); United States v. Collins, 430 F.3d

1260, 1267 (10th Cir. 2005) (same); Johnson v. Commonwealth, 103 S.W.3d 687, 693

(Ky. 2003), cert. denied 540 U.S. 986 (2003) (same); State v. Sanders, 549 S.E.2d 40,

54 (W.Va. 2001) (same).

At least the Fourth and Ninth Circuit Courts of Appeals have found that the

defendant has due process and fair trial constitutional rights to be present at a

competency hearing. Sturgis v. Goldsmith, 796 F.2d 1103, 1108-09 (9th Cir. 1986),

accord United State v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992). This finding

is largely based on the Ninth Circuit’s observation in Sturgis that in three of the five

competency hearings held in the case, the defendant was present and was found

incompetent. Sturgis, 796 F.2d at 1109. When the defendant was absent, he was

found competent. Id. The Ninth Circuit held, that a defendant has a “constitutional

right to be present at every stage of the trial where his absence might frustrate the

fairness of the proceedings.” Sturgis, 796 F.2d at 1109.

Sturgis and Barfield, show that contemporary competency is not required for

a retrospective competency hearing.

While certain trial-type rights must be afforded at a competency hearing,

5 contemporary competency is not one of them. See Tex. Code Crim. Proc. art.

46B.006 (“defendant is entitled to representation by counsel at any court-ordered

competency evaluation and during any proceeding on competency”); Tex. Code Crim.

Proc. art. 46B.008 (Texas Rules of Evidence apply to a competency trial); see also

e.g., United States v. Jent, No. 6: 13–26–DCR–02, 2014 WL 320582, *2 (E.D.Ky. Jan

29, 2014) (18 U.S. C. § 4247(d) governs the competency hearing, and assures certain

trial-type rights, including the right to counsel, the right to confront and

cross-examine witnesses, and the right to participate in the hearing). Contemporary

competency is not a pertinent factor to consider in determining whether a

retrospective competency trial is feasible.

III.

The State has found two cases directly addressing the defendant’s right to be

competent at a retrospective competency hearing, 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).

In Ryder, the defendant was sentenced to life without parole for one murder

and death for another. 83 P.3d at 860. On appeal after the case was remanded for

retrospective competency determination, Ryder claimed that “the trial court erred in

6 failing to hold a hearing to determine his contemporary competency prior to

proceeding with the retrospective competency determination.” Ryder, 83 P.3d at 870.

Ryder argued that the retrospective competency hearing was a “criminal proceeding,”

and as such, the hearing should have been “suspended pending his contemporary

competency.” Id.

The Oklahoma Court of Criminal Appeals noted that “[a] competency hearing

is a special proceeding for the purpose of ensuring full compliance with due process

requirements, but itself is not a criminal prosecution.” Ryder, 83 P.3d at 870 (quoting

Rogers v. Lansdown, 829 P.2d 687, 688 (Okla. Crim. App. 1992)). The court then

summarily held, “As the retrospective competency hearing in this case occurred after

judgment and sentencing, it is not a criminal proceeding that must be suspended

pending determination of contemporary competency.” Ryder, 83 P.3d at 871.

In McRae, on appeal from a retrospective competency determination, McRae

asserted that “the trial court erred when it found that defendant was competent to

proceed at the 7 June 2001 retrospective competency hearing,” and in proceeding

without the presence of the defendant in violation of his statutory and constitutional

rights. Id., 594 S.E.2d at 79. The court noted that the purpose of the competency

statutes “is to determine whether defendant is or was capable to stand trial.” Id. “Our

Supreme Court has held that these hearings ‘[do] not implicate defendant’s

7 confrontation rights and [do] not have a substantial relation to his opportunity to

defend.’” Id. (quoting State v. Davis, 506 S.E.2d 455, 466 (N.C. 1998), cert. denied

526 U.S. 1161 (1999)). “Therefore, whether or not defendant was competent at the

7 June 2001 retrospective competency hearing does not implicate his constitutional

or statutory rights.” McRae, 594 S.E.2d at 79.

Turner’s contemporary competency to stand a retrospective jury trial is

irrelevant, and is not a pertinent consideration in determining whether retrospective

competency trial is feasible.

IV.

Contemporary competency is irrelevant to a retrospective competency hearing and outside the limited jurisdiction of the trial court on remand.

This Court’s opinion remanded this case for a determination of whether a

retrospective competency trial is feasible. Turner, 422 S.W.3d at 696-97.

A defendant’s contemporary competency is irrelevant to a retrospective

competency hearing. If the competency hearing had been held just before or in the

middle of trial, the defendant may or may not have been competent to stand trial. At

a retrospective hearing, evidence of the defendant’s competence at the time of trial

is shown to enable the judge or jury to determine whether the defendant was

competent then.

8 In this case, Turner’s trial counsel asserted that Turner was incompetent.

Though it did not believe Turner was incompetent, the trial court appointed Dr.

Connie Almeida to evaluate Turner before his trial began “in an abundance of

caution.” Many of Turner’s relatives were present during the trial and testified at the

punishment stage. There are also recordings of Turner’s jail phone calls and video

recordings of jail visits with friends and family. A retrospective competency trial is

easily feasible, unless as Turner’s attorneys now propose, Turner must be competent

for the retrospective competency trial and some expert finds he is not.

“After a trial court has lost plenary jurisdiction, it may nonetheless re-acquire

‘limited’ jurisdiction to perform specific functions as authorized by statute or as

instructed on remand by a higher court.” State v. Holloway, 360 S.W.3d 480 (Tex.

Crim. App. 2012). “Trial court jurisdiction over a case is an absolute systemic

requirement.” State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009). “If

there is no jurisdiction, the court has no power to act.” Id. (citing Garcia v. Dial, 596

S.W.2td 524, 528 (Tex. Crim. App. 1980)).

A determination of Turner’s contemporary competency is not a pertinent factor

to the determination of whether a retrospective competency trial, it is outside the

scope of the limited jurisdiction of the trial court on remand, and the State asks this

Court to clarify and enforce the limited jurisdiction conferred.

9 WHEREFORE PREMISES CONSIDERED, the State asks the Court to enforce

the limited jurisdiction of the trial court on remand to determine whether a

retrospective competency hearing is feasible, and if so, to hold a competency trial.

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

/s/ Gail Kikawa McConnell Gail Kikawa McConnell SBOT # 11395400 Assistant District Attorney 301 Jackson Street, Room 101 Fort Bend County, Texas 77469 (281) 238-3205 / (281) 238-3340 (fax) Gail.McConnell@fortbendcountytx.gov

I hereby certify that a copy of the foregoing State's motion to enforce the trial court’s limited jurisdiction on remand, was served on July 7, 2014, by first class mail, return receipt requested # 7013 0600 0002 2111 6334 on Mr. Robert Morrow, 24 Waterway Avenue, Suite 660, The Woodlands, Texas 77380; and on the State Prosecuting Attorney, return receipt requested # 7013 0600 0002 2111 6327 Ms. Lisa McMinn, P.O. Box 13046, Austin, Texas 78711-3046.

/s/ Mattie Sanford Mattie Sanford

10 NO. AP-76.580

ALBERT JAMES TURNER, § IN THE Appellant § § COURT OF CRIMINAL APPEALS VS. § § STATE OF TEXAS THE STATE OF TEXAS, Appellee §

LIST OF EXHIBITS

Exhibit A: Copy of Greene v. State, 264 S.W.3d 271 (Tex. App.—San Antonio 2008, pet. ref d).

Exhibit B: Copy of issues raised in the Greene petition for discretionary review.

Exhibit C: Copy of the trial court's appointment of Dr. Conroy

Exhibit D: Copy of State's motion for reconsideration

Exhibit E: Copy of the trial court's order, denying the State's motion Exhibit A Westlaw Page 1 264S.W.3d271 (Cite as: 264 S.W.3d 271)

Cited Cases

Court of Appeals of Texas, Criminal Law 110 €^>625.25 San Antonio. Shane S. GREENE, Appellant, 110 Criminal Law

v. 110XX Trial

The STATE of Texas, Appellee. 110XX(A) Preliminary Proceedings 110k623 Separate Trial or Hearing on Is No. 04-05-00783-CR. sue of Insanity, Incapacity, or Incompetency May 14, 2008. 110k625.25 k. Retrospective or nunc Discretionary Review Refused Sept. 10, 2008. pro tunc hearing. Most Cited Cases

Background: Defendant was convicted by jury in Retrospective determination of defendant's the 399th Judicial District Court, Bexar County, competency to stand trial following his robbery Juanita A. Vasquez-Gardner, J., of robbery, and conviction was not feasible within confines of due punishment at 10 years confinement was assessed. process, and, thus, defendant was entitled to new Defendant appealed. Following rehearing, the Court trial in the interest of justice; defendant's fluctuat of Appeals, 225 S.W.3d 324, determined that the ing mental condition made it impracticable for trial trial court abused its discretion by not conducting court to conduct a retrospective inquiry into de an informal inquiry into defendant's competency fendant's competency to stand trial in a timely or during guilt/innocence phase of trial, abated appeal, judicially efficient manner, almost three years had and remanded. passed since defendant's conviction, and he had yet to maintain a level of competence sufficient to pro Holding: On restatement and further rehearing, the ceed with any judicial proceedings, and, based on Court of Appeals, Catherine Stone, J., held that ret defendant's most recent psychiatric evaluation, he rospective determination of defendant's competency was expected to remain incompetent for the indef to stand trial was not feasible within confines of inite future. U.S.C.A. Const.Amend. 14; Rules due process, and, thus, defendant was entitled to App.Proc, Rules 43.3, 43.6. new trial in the interest of justice. [2] Constitutional Law 92 €==>4783(1) Reversed and remanded. 92 Constitutional Law West Headnotes 92XXVII Due Process 92XXVII(H) Criminal Law [1] Constitutional Law 92 €^4783(1) 92XXVII(H)9 Disadvantaged Persons 92 Constitutional Law 92k4781 Incompetency or Mental Ill ness 92XXVII Due Process 92XXVII(H) Criminal Law 92k4783 Determination of Compet 92XXVII(H)9 Disadvantaged Persons ency or Sanity 92k4781 Incompetency or Mental Ill 92k4783(l) k. In general. Most ness Cited Cases

92k4783 Determination of Compet Retrospective determination of competency to ency or Sanity stand trial may be conducted consistent with the re 92k4783(l) k. In general. Most quirements of due process in most cases. U.S.C.A.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 264S.W.3d271 (Cite as: 264 S.W.3d 271)

Const.Amend. 14. Following the issuance of our opinion on re- FN1 hearing on February 7, 2007, Greene was eval [3] Criminal Law 110 €^>625.25 uated by medical personnel and declared incompet ent on April 16, 2007. Greene's retrospective com 110 Criminal Law petency inquiry was thus postponed and Greene 110XX Trial was referred to the Texas Department of State 110XX(A) Preliminary Proceedings Health Services ("TDSHS") for psychiatric treat 110k623 Separate Trial or Hearing on Is ment. On September 20, 2007, TDSHS notified the sue of Insanity, Incapacity, or Incompetency trial court that Greene was deemed "mentally in 110k625.25 k. Retrospective or nunc competent to stand trial with no possibility of re pro tunc hearing. Most Cited Cases gaining competence in the foreseeable future." The Difficulties inherent in making a retrospective TDSHS, however, determined Greene did not re determination of defendant's competency to stand quire further inpatient psychiatric treatment for his trial include: (1) the passage of time, (2) the present condition and returned Greene to the custody of the recollection of expert witnesses who testified at the Bexar County Adult Detention Center. On October original hearing, and (3) the ability of the judge and 17, 2007, the trial court reported to this court that it jury to observe the subject of their inquiry. would continue to monitor Greene's condition in definitely. *271 Angela J. Moore, Chief Public Defender, San Antonio, TX, for Appellant. FN1. See Greene v. State, 225 S.W.3d 324 (Tex.App.-San Antonio 2007, no pet.). Crystal D. Chandler, Assistant Criminal District At torney, San Antonio, TX, for Appellee. Greene was evaluated by a state psychiatrist on October 29, 2007, and was found to be competent following his evaluation. Greene's attorney never Sitting: ALMA L. LOPEZ, Chief Justice, CATH theless "expressed reservations regarding ERINE STONE, Justice, SARAH B. DUNCAN, [Greene's] competency to stand trial." In an abund Justice (not participating). ance of caution, the trial court ordered Greene to undergo an additional competency evaluation. This OPINION ON REINSTATEMENT AND FUR evaluation, like the earlier psychiatric evaluation, THER REHEARING suggested Greene was competent to proceed on CATHERINE STONE, Justice. January 24, 2008. The facts of the underlying case are fully dis On February 11, 2008, Greene asked this court cussed in the previous opinion issued*272 by this to reconsider whether a retrospective competency court; therefore, we mention only those additional inquiry was feasible under the circumstances of this facts that are necessary to address the issue of case. This court denied Greene's request, and we whether a retrospective competency inquiry is ordered the trial court to conduct a retrospective in proper under the circumstances presented. After quiry into Greene's competency no later than March further consideration, this court has determined that 24, 2008. Before the trial court proceeded with its a retrospective competency inquiry would deny ap retrospective competency inquiry, however, the pellant Shane Greene due process under the facts of court ordered Greene to undergo a psychiatric eval this case. We therefore hold that Greene is entitled uation to determine whether he was competent to to a new trial in the interest of justice. Accordingly, participate in his retrospective competency determ we reverse the trial court's judgment and remand ination. A state psychiatrist evaluated Greene's con the cause to the trial court for a new trial. dition on March 17, 2008, and the psychiatrist de-

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 264S.W.3d271 (Cite as: 264 S.W.3d 271)

termined that Greene was not competent to proceed. will be critical to the outcome of issues to be ad As a result of Greene's psychiatric evaluation, dressed at the retrospective competency determina Greene was referred to the TDSHS for psychiatric tion and he should not be deprived of his right to treatment and his retrospective competency inquiry assist counsel. However, waiting for Greene to was again postponed indefinitely. come to a point where he could actually assist his trial attorney could prove to be an exercise of futil [1][2] Greene's fluctuating mental condition ity since Greene has been unable to maintain a level has made it impracticable for the trial court to con of competency for any significant period of time duct a retrospective inquiry into Greene's compet since his conviction. Greene's fluctuating mental ency to stand trial in a timely or judicially efficient condition, combined with the mounting passage of manner. It has been almost three years since time, suggests that a retrospective competency in Greene's conviction, and he has yet to maintain a quiry is simply not feasible in this case. level of competence sufficient to proceed with any judicial proceedings. A retrospective competency Given that Greene's present incompetency is inquiry would be meaningless if Greene does not expected to continue indefinitely, we conclude that possess at least some level of competency at the a retrospective competency inquiry is not feasible time the inquiry is conducted. Based on Greene's and hold that Greene is entitled to a new trial in the most recent psychiatric evaluation, Greene is ex interest of justice. See TEX.R.APP. P. 43.3; 43.6. pected to remain incompetent for the indefinite fu Accordingly, the judgment of the trial court is re ture. Consequently, we are left to speculate as to versed and the cause is remanded to the trial court when, if ever, the retrospective competency inquiry for a new trial. may occur in this case. While retrospective compet ency inquiries may be *273 conducted consistent Tex.App.-San Antonio,2008. with the requirements of due process in most cases, Greene v. State

see Barber v. State, 131 S.W.2d 824, 828 264S.W.3d271

(Tex.Crim.App. 1987) (recognizing a retrospective END OF DOCUMENT determination of the competency of an accused "can be made within the limits of due process de pending upon the quality and quantity of the evid ence available"), we are of the opinion that the present case poses an exception.

[3] There are many difficulties inherent in making a retrospective determination of a defend ant's competency to stand trial, including: (1) the passage of time; (2) the present recollection of ex pert witnesses who testified at the original hearing; and (3) the ability of the judge and jury to observe the subject of their inquiry. Id.; Caballero v. State, 587 S.W.2d 741, 743 (Tex.Crim.App. 1979). The fact that Greene is presently unable to proceed with any judicial proceedings nearly three years after his conviction is problematic because his current men tal condition is expected to continue indefinitely. Clearly, Greene's ability to assist his trial attorney

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Exhibit B NO. PD-

TO THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN, TEXAS

THE STATE OF TEXAS, Appellant - Respondent

v.

SHANE S. GREENE, Appellee • Petitioner

FROM THE FOURTH COURT OF APPEALS AT SAN ANTONIO, TEXAS CAUSE NUMBER 04-05-00783-CR

STATE'S nRST AMENDED PETITION FOR DISCRETIONARY REVIEW

SUSAN D. REED Criminal District Attorney Bexar County, Texas

JAMES ISHIMOTO TIM MOLINA Assistant Criminal District Attorney Bexar County, Texas

ORAL ARGUMENT WAIVED CRYSTAL CHANDLER Assistant Criminal District Attorney Bexar County, Texas Cadena-Reeves Justice Center 300 Dolorosa, Suite 4030 San Antonio, Texas 78205-3030 Telephone No. (210) 335-2418 State Bar No. 90001609 (On Appeal)

Attorneys for the State IDENTITY OF THE PARTIES AND COUNSEL

A complete list of all parties to the trial court's judgment or order appealed from,

and the names and addresses of all trial and appellate counsel is provided here. See Tex.

R. App. P. 38.1(a).

Counsel for the State: Crystal Chandler- Counsel on appeal. James Ishimoto - Counsel at trial. Tim Molina - Counsel at trial. Assistant Criminal District Attorneys Bexar County, Texas Cadena-Reeves Justice Center 300 Dolorosa, Suite 4030 San Antonio, Texas 78205

Appellee or Criminal Defendant: Shane Greene

Counsel for Appellee: Bill Harris - Counsel at trial Angela Moore - Counsel on appeal 410 S. Main Ave., Suite 214 San Antonio, Texas 78204

Trial Judges: Honorable Juanita Vasquez-Gardner- Presiding Judge. TABLE OF CONTENTS PAGE(S)

TABLE OF CONTENTS iii

TABLE OF AUTHORITIES iv

STATEMENT REGARDING ORAL ARGUMENT vii

STATEMENT OF THE CASE viii

STATEMENT OF PROCEDURAL HISTORY x

GROUNDS FOR REVIEW !

Ground for Review 1;

Whether the Court of Appeals applied an incorrect standard of review to the appellant's complaint that the trial court failed to conduct an informal inquiry pursuant to Article 46B.004(c) 3

Ground for Review 2;

Did the Court of Appeals err by failing to recognize the trial court conducted an "informal inquiry" pursuant to Texas Code of Criminal Procedure article 46B.004(c)? 10

Ground for Review 3:

Whether the Court of Appeal's finding that the trial court did not conduct an 'Informal inquiry" implicitly imports a high degree of formality notintended by the Legislature when it created the new 'informal inquiry" component of Article 46B.004(c) in the Code of Criminal Procedure 12

ARGUMENT 2

CERTIFICATE OF SERVICE 15

APPENDIX 16

in Exhibit C 10-DCR-054233 ORDER Order 3081251

Cause No. 54,233

STATE OF TEXAS § IN THE 268' "DISTRICT

V. § COURT OF FORT BEND

ALBERT TURNER COUNTY, TEXAS

ORDER AUTHORIZING FUNDING FOR A COMPETENCY EXPERT IN A DEATH PENALTY CASE

On this / day of June, 2014, came to be heard Defendant's Motion for Funding for a Competency Expert in a Death Penalty Case, and the Court is of the opinion and it is hereby ORDERED, that said request is:

iS GRANTED in the amount of X ^iS"^^-5*^ -^-

^ENlEDTTowHicITiUliiigDefeiidaiii timely except

Additionally, it is ORDERED that the Defendant's expert, Dr. Mary Alice Conroy, along with any designated assistant, shall have access to Mr. Turner in an interview room in the Fort Bend County Jail, during which Mr. Turner, DOB 01/11/1965, will be free from restraints and able to write.

The Defendant's expert, Dr. Conroy, along with any designated assistant, shall also have access to Mr. Turner, TDCJ# 999565, while he is housed in the Texas Department of Criminal Justice. The expert shall have access to an interview room and Mr. Turner shall be free from restraints and able to write.

SIGNED this V day oil/ UmZ^ ,2014

FILED Exhibit D 10-DCR-0S4233 MOTI Motion (No Fee) 3109397

CAUSE NO. 10-DCR-054233

§ IN THE 268TH JUDICIAL EX PARTE § DISTRICT COURT OF ALBERT JAMES TURNER § FORT BEND COUNTY, TEXAS

STATE'S MOTION FOR RECONSIDERATION OF THE ORDER TO EVALUATE TURNER FOR CONTEMPORARY COMPETENCY

TO THE HONORABLE JUDGE OF THE 268TH DISTRICT COURT:

The State of Texas, by and through its District Attorney, 268th Judicial

District, hereby requests the Court to reconsider its order to have the convicted

person, Albert James Turner, evaluated for his contemporary competency to stand

trial, specifically to be able to assist his counsel at a retrospective competency jury

trial.

Turner was duly convicted by a jury of capital murder, killing his wife and

mother-in-law in the same criminal transaction. In accordance with the jury's

answers to the special issues, this Court sentenced Turner to death in accordance with

law. The Court of Criminal Appeals abated Turner's appeal and remanded this case

to this Court to "first determine whether it is presently feasible to conduct a

retrospective competency trial, given the passage of time, availability of evidence, * ' L~. i» L>

1 'ON JUL-1 PM ^28

CLERK DISTRICT COURT, 1 FORT BEND CO.. TX ^ and any other pertinent considerations." Turner v. State, 422 S.W.3d 676, 696 (Tex. Crim. App. 2013). If a retrospective competency trial is feasible, this Court "shall

proceed to conduct such atrial in accordance with Chapter 46B, Subchapter C, ofthe Code of Criminal Procedure." Id. at 697. The Court ofCriminal Appeals did not require this Court to first determine whether Turner is presently competent to stand trial.

At a hearing on May 30, 2014, Turner's attorney, Robert Morrow, urged the

Court to have Turner examined for his contemporary competency to stand trial. Mr.

Morrow argued that under Greene v. State, 264 S.W.3d 271 (Tex. App.-San Antonio,

2008, pet. refd), Turner's contemporary competency was relevant to the

determination of whether a retrospective competency hearing is feasible.

In Greene, the San Antonio Court of Appeals "ordered the trial court to

conduct aretrospective competency inquiry into Greene's competency." 264S.W.3d

at 272. The trial court "ordered Greene to undergo a psychiatric evaluation to

determine whether he was competent to participate in his retrospective competency determination." Id. Astate psychiatrist determined that Green was not competent to

proceed and the "retrospective competency inquiry was again postponed

indefinitely." Id. The court of appeals remarked that Greene was "expected to remain incompetent for the indefinite future." Id.

The fact that Greene is presently unable to proceed with any judicial proceedings nearly three years after his conviction is problematic because his current mental condition is expected to continue indefinitely. 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 bedeprived ofhis right to assist counsel. However, waiting for Greene to come to a point where he could actually assist his trial attorney could prove to be an exercise of futility since Greene has been unable to maintain a level of competency for any significant period of time since his conviction. Greene's fluctuating mental condition, combined with the mounting passage of time, suggests that a retrospective competency inquiry is simply not feasible in this case.

Given that Greene's present incompetency is expected to continue indefinitely, we conclude that a retrospective competency inquiry isnot feasible and hold that Greene is entitled to a new trial in the interest of justice. See Tex. R. App. P. 43.3, 43.6. Accordingly, thejudgment of the trial court is reversed and the cause is remanded to the trial court for a new trial.

Grmz, 264 S.W.3d at 273.

The State filed a petition for discretionary review; however, the issues raised

did not ask whether the court of appeals erred in holding that Greene has a right to

assisthistrialattorney at a retrospective competency hearing, butfocused onwhether

the trial court had failed to conduct an informal inquiry in the first place.1

1 The State obtained a copy ofthe petition filed on June 13,2008, by the Bexar County District Attorney's Office. Three grounds were raised:

1. Whether the Court of Appeals applied an incorrect standard of review to the

3 III.

The Greene court's requirement that adefendant becompetent toassist counsel

at theretrospective competency is unsupported by authority. The Court of Criminal

Appeals, as in this case, has never included a defendant's contemporary competency

as a factor to consider in determining whether a retrospective competency hearing is

feasible. See, e.g., Hawkins v. State, 660 S.W.2d 65, 84-85 (Tex. Crim. App. 1983);

Brandon v. State, 599 S.W.2d 567,573-74 (Tex. Crim. App. 1979), vacated on other

grounds 453 U.S. 902 (1981) (noting some ofthe difficulties inholding a retroactive

determination of competency, including "passage of time, present recollection of

expert witnesses who testified atthe original hearing, and ability ofthe judge and jury

to observe the subject of their inquiry," but finding that "[retrospective

determinations are possible depending upon the facts ofeach case and the quality and

quantity of evidence available").

appellant's complaint thatthe trial court failed to conduct an informal inquiry pursuant to Article 46B.004(c).

2. Did the Court of Appeals err by failing to recognize the trial court conducted an "informal Inquiry" pursuant to Texas Code ofCriminal Procedure article 46 B.004(c)?

3. Whether the Court of Appeals's finding that the trial court did not conduct an "informal inquiry" implicitly imports a high degree of formality not intended by the Legislature when it created the new "informal inquiry" component of Article 46B.004(c) in the Code of Criminal Procedure. The State has not found a case from the high court of any other jurisdiction

requiring adefendant to be presently competent to assist counsel at aretrospective or nunc competency hearing. See e.g., Blakeney v. United States, 11 A.3d 328, 349

(D.C. Cir. 2013) (relevant to determining the feasibility ofapostjudgment hearing on a defendant's mental competence are: "(1) [t]he passage oftime, (2) the availability ofcontemporaneous medical evidence and prior competency determinations, (3) any statements bythe defendant inthe trial record, and (4) the availability of individuals

and trial witnesses, both experts and non-experts, who were in a position to interact

with [the] defendant before and during trial"); People v. Ary, 246 P.3d 322, 329 n.3

(Cal. 2011), cert, denied 132 S.Ct. 136 (2011) (same); Edwards v. State, 902 N.E.2d

821, 826 (Ind. 2009) (same); Maynard v. Boone, 468 F.3d 665, 674-75 (10th Cir.

2006), cert, denied 549 U.S. 1285 (2007) (same); United States v. Collins, 430 F.3d

1260,1267(lOthCir.2005)(same); Johnsonv. Commonwealth, 103 S.W.3d687,693

(Ky. 2003), cert, denied540 U.S. 986 (2003) (same); State v. Sanders, 549 S.E.2d 40,

At least the Fourth and Ninth Circuit Courts of Appeals have found that the

defendant has due process and fair trial constitutional rights to be present at a

competency hearing. Sturgis v. Goldsmith, 796 F.2d 1103,1108-09 (9th Cir. 1986),

accord United State v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992). This finding is largely based on the Ninth Circuit's observation in Sturgis that in three ofthe five competency hearings held in the case, the defendant was present and was found incompetent. Sturgis, 796 F.2d at 1109. When the defendant was absent, he was found competent. Id. The Ninth Circuit held, that a defendant has a"constitutional

right to be present at every stage ofthe trial where his absence might frustrate the fairness ofthe proceedings." Sturgis, 796 F.2d at 1108,1109. The recognition ofthe constitutional right to be present at a competency hearing was not based on the defendant's contemporary competency.

"[I]t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity tostand trial." Pate v. Robinson, 383 U.S. 375,384 (1966). Likewise, since Turner's

trial counsel argue that Turner was not competent during the trial, itis contradictory to argue that Turner must be contemporaneously competent to assist them at a

retrospective hearing. A defendant's competency can be variable. If this Court

follows Greene, Turner may have been competent at trial, but if one ofthe experts finds Turner incompetent now, a new trial will be ordered.

While certain trial-type rights must be afforded at a competency hearing,

contemporary competency is not one of them. See Tex. Code Crim. Proc. art.

46B.006 ("defendant is entitled to representation by counsel at any court-ordered competency evaluation andduring anyproceeding oncompetency"); Tex. Code Crim.

Proc. art. 46B.008 (Texas Rules of Evidence apply to a competency trial); see also

e.g., United States v. Jent, No. No. 6: 13-26-DCR-02, 2014 WL 320582, *2

(E.D.Ky. Jan 29, 2014) (18 U.S. C. § 4247(d) governs the competency hearing, and

assures certain trial-type rights, including the right to counsel, the right to confront

and cross-examine witnesses, and the right to participate in the hearing).

The State has found two cases directly addressing the defendant's right to be

competent at a retrospective competency hearing, Ryder v. State, 83 P.3d 856,870-71

(Okla. Crim. App.), cert, denied 543 U.S. 886 (2004) (death penalty case); andState

v. McRae, 594 S.E.2d 71, 79 (N.C. Ct. App.), pet. denied 599 S.E.2d 911 (N.C.

In Ryder, the defendant was sentenced to life for one murder and death for

another. 83 P.3dat 860. After hearingoral argument on direct appeal, the Oklahoma

Court of Criminal Appeals remanded the case to the district court to determine

whether a retrospective hearing on the defendadnt's competency at the time of the

trial. Id. On appeal after theretrospective competency determination, Ryderclaimed

"the trial court erred in failing to hold a hearing to determine his contemporary

competency prior to proceeding with the retrospective competency determination." Ryder, 83 P.3d at 870. Ryderargued that undera state statutethat defined "criminal

proceeding" as "every stage of a criminal prosecution after arrest and before

judgment, including, but not limited to, interrogation, lineup, preliminary hearing, motion dockets, discovery, pretrial hearings and trial," the retrospective competency hearing should have been "suspended pending his contemporary competency." Id. The Oklahoma Court of Criminal Appeals noted its prior holding that "[a] competency hearing is a special proceeding for the purpose of ensuring full compliance with due process requirements, but itself is not a criminal prosecution." Ryder, 83 P.3d at 870 (quoting Rogers v. Lansdown, 829 P.2d 687,688 (Okla. Crim.

App. 1992). The court then summarily held, "As the retrospective competency hearing in this case occurred after judgment and sentencing, it is not a criminal

proceeding that must be suspended pending determination of contemporary competency." Ryder, 83 P.3d at 871.

In McRae, on appeal from a retrospective competency determination, McRae

asserted that "the trial court erred when it found that defendant was competent to

proceed at the 7 June 2001 retrospective competency hearing," and in proceeding without the presence ofthe defendant inviolation of his statutory and constitutional

rights. Id., 594 S.E.2d at 79. The court noted that the purpose ofthe competency

statutes "istodetermine whether defendant isorwas capable tostand trial." Id. "Our Supreme Court has held that these hearings "[do] not implicate defendant's

confrontation rights and [do] not have a substantial relation to his opportunity to defendant." Id. (quoting State v. Davis, 506 S.E.2d 455, 466 (N.C. 1998), cert, denied 526 U.S. 1161 (1999)). "Therefore, whether or not defendant was competent at the 7 June 2011 retrospective competency hearing does not implicate his constitutional or statutory rights." McRae, 594 S.E.2d at 79.

The State has not found acase where the Texas Court ofCriminal Appeals has

addressed adefendant's contemporary competency to assist counsel at aretrospective hearing orthe implication ofFifth orSixth Amendment trial rights.

Inthis case, Turner's contemporary competency has little value asthe evidence

of his alleged incompetency during his jury trial is based largely on the opinions of

his trial counsel-Pat McCann, Tyrone Moncriffe, mitigation specialist and counsel

Amy Martin, and appellate attorney Robert Morrow. As amply spread in the record,

Turner believed hewas competent. His recollection of his competency to stand trial

will not be of assistance to his attorneys, who believed he was incompetent. WHEREFORE, PREMISES CONSIDERED, the State requests that the Court

reconsider its order for each party topropose an expert to determine Turner's present

competency to stand a jury trial to determine his competency at the time of his trial,

and to find that more than ample evidence by which a retroactive competency trial is

feasible.

John F. Healey, Jr. SBOT# 09328300 torney, 268tlf7Udicial District

Fred Felcman afr i^l^'f SBOT# 06881500 First Assistant District Attorney

GaiUCikawa McConnell SBOT 11395400 Assistant District Attorney 301 Jackson Street, Room 101 Richmond, Texas 77469 (281) 238-3205 / (281) 238-3340 (fax) Gail.McConnell@fortbendcountytx.gov

10 CERTIFICATE OF SERVICE

I hereby certify that a copy of the State's motion for reconsideration has be

served on Mr. Robert Morrow, attorney for Albert Turner, byfacsimile transmission

to 832-813-0321, and via email on July 1, 2014.

Gail'^Kikawa McConnell

11 Exhibit E 10-OCR-06*233 ORDER Order 3111371

CAUSE NO. 10-DCR-054233HC1

IN THE 268TH JUDICIAL EX PARTE DISTRICT COURT OF ALBERT JAMES TURNER FORT BEND COUNTY, TEXAS

ORDER

On this day, the Court considered the State's motion for reconsideration of its

order to appoint experts to evaluate Turner's contemporary competency.

The Court hereby sets the State's motion for ahearing on July ^_^ 2014, at

The Co aluations of Turner pending th^jecicion of the

Court uiilUe Staled ii reconsideratic ^ icl-Clqrk in s^nd fl rnpy r>f thie mvW TnrporV

attorney, Rubeft-OTorrow, nnri tothe fitat6(attcnliuii Ajjslslalll District Attuuicy Gail IcConnell).

Signed on July P" , 2014.

FILED 2AIUUL-I PH ii: 28

ROUTED TO COURT 7-=^'HU CLERK.DISTRICT COURT RT'DTOD. CLERK V^lHlt FORT BEND CO.. TXU- Exhibit H In re McCann, 422 S.W.3d 701 (2013)

With respect to the requirement for mandamus that the act sought is purely ministerial, the 422 S.W.3d 701 relator must have a “clear right to the relief Court of Criminal Appeals of Texas. sought,” meaning that the merits of the relief In re Patrick McCANN et al. sought are beyond dispute.

Nos. AP–76998, AP–76999. | Nov. 20, 2013. 2 Cases that cite this headnote

Synopsis [3] Mandamus Background: Death-sentenced client's defense attorney filed Nature and existence of rights to be petition for writ of mandamus seeking to compel 268th protected or enforced District Court, Fort Bend County, Brady Elliot, J., to overturn order holding attorney in contempt for refusing to turnover To show a clear right to the relief sought, as client's file to court appointed postconviction counsel. required to obtain mandamus relief, a relator must show that the facts and circumstances of the case dictate but one rational decision under unequivocal, well-settled and clearly controlling [Holding:] The Court of Criminal Appeals, Hervey, J., held legal principles. that client, not his trial attorney, owned client's file, and thus, attorney could not be compelled to turn over client's file to 1 Cases that cite this headnote appointed postconviction counsel without client's consent. [4] Mandamus Writ of mandamus conditionally granted. Nature of questions involved The court may grant relief in a mandamus case Price, J., filed dissenting opinion. based on a well-settled, but rarely litigated point of law. Womack, J., dissented. Cases that cite this headnote

[5] Prohibition West Headnotes (8) Nature and scope of remedy Prohibition [1] Mandamus Existence and Adequacy of Other Remedies Remedy at Law Prohibition relief is available only if the relator Mandamus shows that he has a clear right to the relief sought Nature of acts to be commanded and no other adequate legal remedy is available. Mandamus relief may be granted if a relator shows that: (1) the act sought to be compelled is 1 Cases that cite this headnote purely ministerial, and (2) there is no adequate remedy at law. [6] Mandamus Jurisdiction and authority 1 Cases that cite this headnote In an ordinary case, a petition for writ of mandamus should first be presented to a court of [2] Mandamus appeals unless there is a compelling reason not Nature and existence of rights to be to do so. protected or enforced Mandamus Cases that cite this headnote Nature of acts to be commanded

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 In re McCann, 422 S.W.3d 701 (2013)

(“OCW”) to handle Turner's postconviction writ. As part of [7] Attorney and Client its investigation, OCW asked Turner to authorize the release Files of attorney or client of his trial file from McCann. Turner refused to sign the Death-sentenced client, not his trial attorney, release because OCW is a “state agency,” 1 and he wanted to owned client's file, and thus, attorney could speak with his sister before moving forward. Lacking Turner's not be compelled to turn over client's file authorization, McCann refused to release the file believing to appointed postconviction counsel without that his client was invoking his right to keep his privileged client's consent and would have been violating information confidential. his fiduciary duty to client if he had done so. In response, OCW filed a motion asking the trial court to order 1 Cases that cite this headnote McCann to turn the *703 file over. After a hearing, 2 the trial court ordered trial counsel to relinquish Turner's trial file, [8] Attorney and Client and McCann refused. He then filed a motion in this Court for Files of attorney or client leave to file petitions for writs of mandamus and prohibition. The client's file belongs to the client. While McCann's motion was pending, OCW successfully withdrew as Turner's habeas counsel. Subsequently, we Cases that cite this headnote dismissed McCann's motion as moot because OCW, a “state agency,” no longer represented Turner. McCann v. Elliot, Nos. WR–76,984–01, WR–76,984–02, 2012 WL 752612 (Tex.Crim.App. Mar. 7, 2012) (per curiam) (not designated Attorneys and Law Firms for publication).

*702 Casie Gotro, Houston, TX, Lisa C. McMinn, State's The trial court then appointed new habeas counsel, Attorney, Austin, for Relator. James Rytting, to represent Turner in his postconviction application, 3 and Rytting, like OCW, sought Turner's trial file for investigatory purposes. Rytting stated that he visited OPINION Turner twice in person after his appointment, and he agreed HERVEY, J., delivered the opinion of the Court in that McCann's characterization of Turner was correct in that which KELLER, P.J., MEYERS, JOHNSON, KEASLER, Turner did not want the file turned over. 4 Rytting also COCHRAN, and ALCALA, JJ., joined. explained that, based on his visits with Turner, if McCann gave the file to Turner, Rytting would never see it. For his Relator, Patrick McCann, seeks writs of mandamus to part, McCann continued to refuse to relinquish the trial file overturn orders of the trial court directing him to relinquish based on his understanding of his client's wishes. 5 In a his former client's trial file to successor counsel and holding second hearing, the trial court ordered McCann to turn over him in contempt for his failure to do so. He also seeks a writ of his file again. After failing to comply with the trial court's prohibition to disallow the trial court from enforcing its order second order, the court found McCann in contempt. compelling him to turn the file over. We will conditionally grant Relator relief on his petition for writs of mandamus and On January 7, 2013, this Court granted a Motion for dismiss his petition for a writ of prohibition. Emergency Relief staying enforcement of the trial court's orders to turn over the file and finding McCann in contempt. In re McCann, No. WR–76,984–01 (Tex.Crim.App. Jan. 7, I. BACKGROUND 2013) (per curiam) (not designated for publication). We then filed and set the petitions and ordered the parties to brief the Albert James Turner was charged with capital murder. At following three issues: trial, he was represented by Patrick McCann and Tyrone Moncriffe. In June 2011, Turner was found guilty and 1. To whom does a client's physical file belong? sentenced to death. The trial court appointed counsel for Turner's direct appeal and the Office of Capital Writs 2. If the file belongs to the client (the defendant in the underlying case here), what are the possible consequences

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*704 should the client refuse to turn over the file to In an ordinary case, a petition for writ of mandamus “should subsequent counsel? first be presented to a court of appeals unless there is a compelling reason not to do so.” Padilla v. McDaniel, 3. If the file belongs to the client and the client is unable or 122 S.W.3d 805, 807–08 (Tex.Crim.App.2003) (per curiam) unwilling to decide whether to turn over the file, to whom (citing TEX.R.APP. P. 52.3(e)). However, the mandamus does that decision fall (e.g. former counsel, subsequent action was properly filed directly in this Court because this is counsel, trial judge, or guardian appointed for that issue)? a capital-murder case in which the death penalty was assessed. See Padilla, 122 S.W.3d at 806–07. In re McCann, Nos. AP–76,998 & AP–76,999, 2013 WL 1149840, at *1 (Tex.Crim.App. Mar. 20, 2013) (per curiam) (not designated for publication). The Court received Rytting's court-ordered brief on April 19, 2013. McCann never III. DISCUSSION submitted a brief on the merits, and the State Bar of Texas filed an amicus brief. [7] [8] To whom does a client's file belong? The client's file belongs to the client. 6 In 1918, the Texas Supreme Court recognized explicitly that an attorney is an *705 agent of his client and implicitly that a client owns the contents of II. WRITS OF MANDAMUS AND PROHIBITION his or her file. See Thomson v. Findlater Hardware Co., 109 [1] [2] [3] [4] Mandamus relief may be granted if aTex. 235, 237, 205 S.W. 831, 832 (Tex.1918). Later, we relator shows that: (1) the act sought to be compelled is expressly reaffirmed that a client owns the contents of his purely ministerial, and (2) there is no adequate remedy at or her file. 7 See Burnett v. State, 642 S.W.2d 765, 769, n. law. In re State ex rel. Weeks, 391 S.W.3d 117, 121–22 10 (Tex.Crim.App.1983) (citing Thomson, 205 S.W. at 832) (Tex.Crim.App.2013). With respect to the requirement that (“[W]hen all is said and done, the tape recording, as with the act sought is purely ministerial, the relator must have deeds, notes, vouchers, documents and papers of a client, a “clear right to the relief sought,” meaning that the merits is the property of [the client]”). Neither McCann nor the of the relief sought are “beyond dispute.” See Winters v. State has referred to our holding in Burnett, but the amicus Presiding Judge of Criminal Dist. Court No. Three of Tarrant curiae brief filed by the State Bar of Texas cites Burnett for Cnty., 118 S.W.3d 773, 775–76 (Tex.Crim.App.2003). To the true, but inapplicable, proposition that the right to claim show “a clear right to the relief sought,” a relator must show or waive the attorney-client privilege belongs to the client, that the facts and circumstances of the case “dictate but his guardian, or his conservator. Amended Brief of Amicus one rational decision ‘under unequivocal, well-settled ... and Curiae State Bar of Texas, Nos. AP–76,998 & AP–76,999, at clearly controlling legal principles.’ ” Weeks, 391 S.W.3d at 6–7; see Burnett, 642 S.W.2d at 770. Today we reaffirm that 122. However, we have also noted that, although an issue a client owns the contents of his or her file. Rytting advances may be one of first impression, it does not necessarily follow a bevy of arguments as to why a client's file, or part of a that the law is not well-settled. Id. It is a small step then to client's file, does not belong to the client, and to support his hold that, this Court may grant relief in a mandamus case arguments, he cites a number of sources. However, as we based on a well-settled, but rarely litigated point of law. See explain, each of Rytting's arguments is unpersuasive. 8 id. Regarding the requirement of an adequate remedy at law, we have held that even if a relator has a remedy at law, that First, Rytting argues that *706 Texas Disciplinary Rule relator can show that no adequate legal remedy exists at law of Professional Conduct 1.15(d) 9 limits a client's interest if the remedy is “so uncertain, tedious, burdensome, slow, in his or her own file to a possessory right to demand a inconvenient, inappropriate, or ineffective as to be deemed copy of the file, and even that right is qualified, he asserts, inadequate” Id. (quoting Greenwell v. Court of Appeals because an attorney is allowed to withhold a client's papers for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648–49 to enforce payment of fees in the form of an attorney (Tex.Crim.App.2005)). lien. TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.15(d), reprinted in TEX. GOV'T CODE, tit. 2, subtit. [5] [6] Similarly, prohibition relief is available only if the G, app. A (Tex. State Bar R. art. X, § 9). These arguments relator shows that he has a clear right to the relief sought and —that the client has a limited possessory interest in his no other adequate legal remedy is available. See State ex rel. or her own file and that the attorney-lien language of the Lykos v. Fine, 330 S.W.3d 904, 907 (Tex.Crim.App.2011).

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Disciplinary Rules creates a property right in favor of the and control of the principal's property without the principal's attorney—are not persuasive. First, Rule 1.15(d) of the Texas permission absent circumstances inapplicable in this case Disciplinary Rules of Professional Conduct speaks to only (e.g., an attorney lien, incompetency). 14 This is true even “papers and property to which the client is entitled ... [,]” and if the client *708 decides, against his or her best interests, it contemplates the retention of client papers only in the case not to relinquish the trial file to subsequent counsel because of a valid attorney lien, which has not been asserted here. a legally competent client can define his or her own best Second, Rytting's attorney-lien argument is a red herring and interests, and that decision will control. 15 Finally, Rytting actually supports Relator's position. The language of Rule argues that if a client is unable or unwilling to decide if it is 1.15(d) allows an attorney to retain papers “relating to the in his or her best interest to release the trial file to successor client” as allowed by law, if such retention does not prejudice counsel, then that decision lies with successor counsel as the client in the subject matter of the representation. Id. The the “current attorney” for the client and not former counsel language of the rule does not designate the owner of the or a guardian. However, the authorities cited by Rytting “papers relating to the client”; rather it allows an attorney regarding attorney-client privilege are inapposite because, as to assert an attorney lien on those papers. A lien is a “legal we have explained, property rights control the outcome of this right or interest that a creditor has in another's property question, not privilege law or the Texas Disciplinary Rules of ” that usually lasts “until a debt or duty that it secures is satisfied.” BLACK'S LAW DICTIONARY 933 (7th ed.1999) Professional Conduct. 16 (emphasis added). Thus, a lien, by its definition, is a transitory interest in someone else's property and, therefore, the attorney If an attorney has no reason to believe that his or her client asserting such a lien never owns the property at issue, the is legally incompetent, the client's decision not to release client owns the file by implication (if the attorney does not), his or her trial file is unassailable. However, if the attorney “reasonably believes that the client lacks legal competence[,]” and Rytting's arguments must fail. 10 Next, Rytting eschews then the attorney “shall take reasonable action to secure the property-right arguments in favor of asserting that ethical and professional duties require a trial attorney to retain a copy of appointment of a guardian or other legal representative....” 17 the trial file for the benefit of subsequent counsel in a death- TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.02(g). *709 If a guardian or other legal representative penalty case. 11 Specifically, Rytting cites Guideline 11.8 of has already been appointed, the client's attorney “should the State Bar of Texas's Guidelines and Standards for Texas ordinarily look to that representative for decisions on behalf Capital Counsel and Guideline 10.13 of the American Bar of the client.” Id. at 1.02(g) cmts. 12 & 13. Nevertheless, an Association's Guide for the Appointment and Performance of attorney can seek to have an appointed guardian replaced if Defense Counsel in Death Penalty Cases. The two guidelines he or she is not acting in the best interest of the client. See are substantially similar. *707 12 Compare GUIDELINES Urbish v. 127th Judicial Dist. Ct., 708 S.W.2d 429, 431–32 AND STANDARDS FOR TEXAS CAPITAL COUNSEL (Tex.1986) (orig.proceeding) (holding that, when considering 11.8 (State Bar of Tex.2006), with ABA GUIDELINES only the ward's best interests, a trial court can replace a FOR THE APPOINTMENT AND PERFORMANCE OF guardian if it determines that the guardian has an adverse DEFENSE COUNSEL IN DEATH PENALTY CASES interest to the ward; the decision of the trial court is reviewed 10.13 (2003). Rytting, however, neglects to cite Guideline for an abuse of discretion). Thus, Rytting's argument that 12.1(F) of the Texas guidelines expressly limiting the ability successor counsel's decision regarding his or her client's of trial counsel to turn over a client's file to successor file prevails over all other claims, including those of his counsel without the consent of the client. 13 Nonetheless, competent client or the client's guardian (if applicable) is both guidelines are only persuasive authority, and they are unsupportable and an incorrect statement of the law. designed to safeguard a criminal-defendant's interests, not a successor counsel's “right” to force trial counsel to retain, In this case, the conflict is between Turner's trial and and turn over, a client's file (or a copy) against the client's postconviction attorneys. McCann, Turner's trial attorney, has wishes. Thus, if the client makes a voluntary decision not to declined to turn over the file based on his understanding that turn over his or her file, a client's former counsel is obligated his former client wants him to hold the file until otherwise to refuse to provide a copy of the client's file to facilitate directed. Rytting, Turner's postconviction attorney, seeks to the work of successor counsel. This is because the agent force McCann to turn over the file because he believes that it (the client's former attorney) may not relinquish dominion is in his client's best interests. Both attorneys have obligations

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under the Texas Disciplinary Rules of Professional Conduct: his or her former client's last known wishes under these McCann is obliged to honor his former client's wishes not to circumstances—McCann should not turn over his former reveal privileged information, and Rytting seeks to overturn client's file, Judge Elliott did not have the authority (inherent his appointed client's sentence of death in postconviction or otherwise) to order McCann to violate his fiduciary duty proceedings but is being prevented by his own client from to Turner, 22 and Judge Elliott did not have the authority to 18 effectively doing so. McCann, however, has an additional enforce that order by holding McCann in contempt for failing burden based on the binding precedent of this Court under to relinquish the file. Moreover, McCann has no adequate Burnett, and as the agent and holder of his principal's trial remedy at law because, although McCann could seek relief file, to follow the wishes of his principal in disposing or from the order of contempt through an application for writ of retaining the property as the principal directs. 19 Assuming habeas corpus, 23 that relief would not resolve the underlying Turner is legally competent (as the trial court found in this issue of *711 the trial judge's order compelling McCann to case), he is entitled to choose not to turn over his trial file; relinquish Turner's trial file. In addition, Rytting points to no and McCann, as Turner's former counsel and agent, must constitutional provision, statute, or caselaw, nor are we aware honor that decision for the reasons that we have explained. of any, that allows McCann to appeal the order of the trial If, however, McCann, Rytting, or another interested party judge compelling him to turn over the trial file. See Johnson with standing believes that Turner is legally incompetent, that v. Tenth Judicial Dist. Ct. of Appeals at Waco, 280 S.W.3d person can seek to have a guardian appointed. 866, 873 (Tex.Crim.App.2008). Thus, even if McCann has a remedy at law, it is not adequate under these circumstances. Although the trial judge rejected repeated motions by McCann to have Turner declared incompetent pretrial and at In addition, because McCann has a clear right to relief, trial, it may be in the client's best interests for Rytting to also vacating the order of contempt and the order to relinquish attempt to have a guardian appointed. But we acknowledge Turner's trial file is a purely ministerial act. Therefore, we that, before the appointment of a guardian is warranted, a conditionally grant Relator relief on his petition for writs of defendant must do more than simply misbehave; he or she mandamus. We assume that the trial court will immediately must be proven legally incompetent by a preponderance of the comply with our order, and the writs of mandamus will issue evidence. 20 See TEX.CODE CRIM. PROC. art. 46B.003(b). only in the event that the judge should refuse to do so. 24 Moreover, the trial judge is correct that certain deadlines have been triggered in this death-penalty *710 case that cause Turner's decision to severely damage his chances of success PRICE, J., filed a dissenting opinion. in postconviction proceedings, 21 but if Turner is competent to stand trial, then his choice to undermine the ability of his WOMACK, J., dissented. postconviction attorney to represent him effectively may be a poor one, but it is one the law allows him to make. PRICE, J., filed a dissenting opinion. Today the Court holds that, as between a lawyer and his client, the client owns the legal file that is in his lawyer's possession; that the client may dictate the disposition of that file; and IV. RELATOR IS ENTITLED TO RELIEF that the client's dictates override the express order of a sitting judge. I wholly agree with the Court that “[t]he client's file Here, Turner is statutorily presumed competent, and he has expressly been found competent by the trial court. Moreover, belongs to the client.” 1 But I disagree that this holding his last instructions to McCann were not to release his trial suffices to dispose of the mandamus proceeding before us. file unless directed to do so. After Turner told McCann to In my view, the Court asks the wrong question. The right not release his trial file, he declined repeatedly to sign a question—the answer to which will properly dispose of the release authorizing his trial file to be turned over to his case before us—is whether, given that the file “belongs to the appointed postconviction counsel despite his knowledge of client,” the convicting court presiding over this capital habeas the consequences of such an action. corpus proceeding lacks all authority to order a disposition of that client's file that is at odds with the client's wishes. In my Therefore, in light of this opinion—a client owns his or view, there is no clear answer to that question to be derived her trial file and a former attorney is obligated to follow from any state precedent.

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ownership of his file notwithstanding, a “compelling reason” The Court effectively disposes of the question of the may justify “depriv[ing] a client of his or her property.” 7 convicting court's authority by summarily declaring that Indeed, in George, the Texas Supreme Court did not question Judge Elliott “did not have the authority (inherent or the trial court's ultimate authority to order disclosure, but otherwise) to order McCann to violate his fiduciary duty to rather sought to describe the circumstances when, and the Turner[.]” 2 The only precedent the Court is able to muster extent to which, it would be appropriate to exercise that in support of this declaration, however, simply establishes authority. 8 Thus, simply to say that the file belongs to Turner, that a trial court's authority extends only to the issuance of and that Turner, if he is competent, 9 may do what he wishes “lawful” orders. 3 But, of course, the very question that the with the file, does not answer the determinative question in Court effectively begs is whether the convicting court's order this case, which is: Given that the client owns the contents of compelling McCann to turn over his client's file against his his case file, does a convicting court lack all authority to issue client's wishes was, indeed, “lawful.” If the Court must take an order disposing of the file in a way that conflicts with the this occasion to say what the law is for the first time, I fail to client's expressed wishes? This question is anything but well- understand how it can be said that the law up until now was so settled. “clear” that McCann is entitled to mandamus relief from the convicting court's contempt order. For that reason, I believe To the extent that the Court relies on ethical considerations that mandamus relief should not lie. to reach its ultimate conclusion, there is good reason to think that the answer to this question is: No, the authority of trial judges is not limited in this way. Professors Goode, McCann's Dilemma: “A Lawyer Shall Wellborn, *713 and Sharlot have concluded that “[t]he rules of professional conduct do not ... provide an independent Not ... Reveal Confidential Information” 4 basis for refusing to answer questions during the course An attorney's duty to maintain his client's confidences arises of a ... criminal proceeding.” 10 That treatise also notes from his ethical *712 obligations as a practitioner of the that “the attorney-client privilege empowers a client to profession of lawyering. 5 Both McCann and Rytting are block the compelled disclosure of confidential attorney-client attempting to satisfy what they perceive to be their respective communications ... [while] the ethical obligation enjoins the ethical duties, but face the vexing dilemma that those duties lawyer from voluntarily revealing confidential information cannot simultaneously be satisfied. McCann, for his part, obtained while representing the client.” 11 The distinction, feels that he is bound by his ethical duty to maintain client in that discussion, between “compelled” and “voluntary” confidences not to divulge confidential information over the disclosures serves to highlight an important aspect of this wishes of his client. Rytting feels that he is bound by his case: McCann is not citing the Rules of Professional Conduct ethical duty of effective representation to seek trial counsel's for the proposition that he is ethically prohibited from files—whether they contain confidential information or not voluntarily turning over Turner's files. Were he to make such —and examine them for purposes of preparing an application an argument, I would be inclined to agree with him. Rather, for writ of habeas corpus. Both lawyers, realizing the ethical McCann is citing to the Rules of Professional Conduct for quandary they are in, have laid their concerns at the feet of the proposition that the trial judge has no authority to compel the convicting court and asked for a ruling so that one or the McCann to turn the files over to Rytting, nor even to order other of them may be absolved of any ethical wrongdoing. him to make a copy and turn that over. And this is where What the Court essentially declares today is that the law I think McCann's (and, by extension, the Court's) argument unequivocally binds Judge Elliott to resolve this ethical ultimately falters. quandary in McCann's favor. I disagree. The Texas Disciplinary Rules of Professional Conduct The bulk of the Court's analysis is devoted to answering the explicitly envision that there will be occasions when a lawyer following question: “To whom does a client's file belong?” will face conflicting obligations from, on the one hand, a The Court relies, inter alia, on the Texas Supreme Court's court order, and, on the other, the Rules themselves. Rule opinion in In re George to conclude that a client “owns 1.05(c)(4), for instance, states that “[a] lawyer may reveal the contents of his or her file.” 6 I do not disagree with confidential information ... [w]hen the lawyer has reason to this conclusion. But George itself recognizes that, a client's believe it is necessary to do so in order to comply with a court

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order [.]” 12 We have not, either today or at any other time solely determine the extent of a trial judge's authority in that I am aware of, explained what effect, if any, this provision these circumstances. In both Burnett and George, the litigants has on the authority of a trial judge to resolve an ethical seeking to avoid respective court orders commanding them to dispose of their “property” in a certain fashion were Catch–22 such as the one presented in this case. 13 True expected to assert, in addition to their property interests, enough, the Rule states that a lawyer “may reveal,” not that he something else—some other definite legal protection or right “must reveal.” But this simply means that one who voluntarily that actually limited the authority of the trial judge. In Burnett disobeys a court order to turn over confidential material does not violate the Disciplinary Rules of Professional Conduct— this “something else” was the attorney-client privilege. 17 it does not mean that he does not violate the court order, that In George the “something else” was the threat of an actual the order is of no effect, or that the Rules altogether strip conflict of interest. 18 In this case I see no *715 “something the court of the authority to issue that order. This conclusion else”—I see only a bare assertion of a property right, and *714 is especially apparent when Rule 1.05 is considered in absolutely no argument as to how this property right is so light of other provisions of the Texas Disciplinary Rules of inviolable as to be totally impervious to court order. 19 Professional Conduct that make clear that the Rules govern the profession of lawyering—not the authority of trial judges Even if I have misread Burnett and George, I would remain —and by their terms purport to extend no further. 14 of the opinion that property law alone gives no “clear” or “settled” resolution to the case before us. There are still, Moreover, to the extent that the Court relies on property-law in my mind, too many unanswered questions to admit of a considerations in reaching its ultimate conclusion, again there such a clear resolution. For instance: The Court addresses at is reason to think that the answer to (what I have called) the length the wrongfulness of Judge Elliott's order to McCann determinative question in this case would also cut against a to turn over his client's physical file, but curiously glosses grant of mandamus relief to McCann—that is, that property over whether it would have been wrong, per Rytting's explicit law by itself does not limit the authority of trial judges in the request, to simply order McCann to relinquish a copy of the way envisaged by the Court. In coming to the conclusion that file. How do we know whether such an order would also McCann's “burden based on the binding precedent ... under violate Turner's property rights (that is, which authorities Burnett ” is sufficiently weighty to render Judge Elliott's provide a “clear” answer to this question)? Is it because order unenforceable, the Court purports only to reaffirm our the file is just a physical embodiment of what is, in effect, holding in Burnett that “a client owns the contents of his or Turner's intellectual property? How do we know? If Turner her file.” 15 From there, the Court (correctly) recognizes that has an intellectual property interest in the contents of the file, the assertion of the attorney-client privilege is not implicated how far does that interest extend? All the way? Less than all in this case and then (incorrectly) surmises that the second the way? How do we know? Does making a copy of the file holding of Burnett can be disregarded. and handing the copy to the client's current attorney violate that interest, whatever its extent? How do we know? To the contrary, I find it significant that Burnett 's first holding —according to the Court, that the client owns the contents Again, I do not claim to have answers to these questions. I of his or her file—did not dispose of the relevant issue in am simply pointing out that the Court's disposition depends that case. Indeed, the fact that the Burnett Court saw the need upon, or at the very least suggests, the pre-existence of clear to discuss the law of privilege after determining ownership and definitive answers. Today the Court says for the first time of the file indicates to me that property-rights considerations what the law is in this area, but then treats its pronouncement were, to say the least, insufficient by themselves to illuminate as time-honored and long-established. Trial judges who find the proper disposition of that case. After all, if the proposition themselves the subject of our mandamus authority can only that a competent client can exercise “unassailable” ownership scratch their heads. of his or her file were as true in Burnett as it seemingly is today, 16 why bother, in that case, to discuss the attorney- client privilege at all? Rytting's Dilemma: “A Lawyer Zealously Asserts the Client's Position” 20 The reason, of course, is that a party's assertion of a property right, without more, does not—and should not—

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There was a time in our jurisprudence when this Court—and functions, a lawyer should zealously others—recognized the “discretionary” nature of mandamus pursue clients' interests within the relief. 21 This discretion, it was thought, existed even when bounds of the law. In doing so, a the long-settled prerequisites for mandamus—a clear claim lawyer should be competent, prompt, to relief and the absence of an adequate remedy at law—had and diligent. [P]ersonal involvement in the problems of the disadvantaged been met. 22 Perhaps it was in view of this discretion that can be one of the most rewarding the Court ordered the parties in this case to brief a question experiences in the life of a lawyer. that, on its face, appears not to be grounded in the law as In representing a client, a lawyer much as *716 the potential ramifications of Turner's own shall not ... neglect a matter self-defeating decision: “If the file belongs to the client (the entrusted to the lawyer[.] Competent defendant in the underlying case here), what are the possible representation contemplates ... consequences should the client refuse to turn over the file to reasonable thoroughness in the study subsequent counsel?” 23 and analysis of the law and facts, and reasonable attentiveness to the In its haste to find error in Judge Elliott's decision to responsibilities owed to the client. override McCann's refusal to turn over Turner's file to A lawyer should feel a moral or Rytting, the Court fixates on the duties and dilemmas professional obligation to pursue a facing McCann in his own decision whether to turn over matter on behalf of a client with Turner's files, but wastes no ink to consider the dilemma reasonable diligence and promptness faced by Rytting. The Court today does not even mention despite opposition, obstruction or the “possible consequences” to Turner, notwithstanding the personal inconvenience to the lawyer. interest it evinced in its earlier briefing order. Again, given the [A] lawyer shall abide by a client's “discretionary” nature of mandamus relief and the fact that decisions ... concerning the objectives mandamus is available only in “extraordinary situations,” 24 and general methods of representation, I am puzzled by the Court's reticence in this regard. Whatever [but] [t ] he lawyer should assume the reason, since the Court has not undertaken to describe responsibility for the means by the consequences to Rytting and Turner should Judge Elliott's which the client's objectives are order be overturned, I will. best achieved. Thus, a lawyer has very broad discretion to determine Rytting has an obligation—an ethical imperative—to review technical and legal tactics [.] The McCann's files on Turner for any signs of ineffective advocate has a duty to use legal representation at the trial level. This obligation is apparent procedure for the fullest benefit of from a perusal through the admittedly nebulous and lofty the client's cause [.] The advocate's expectations of the Disciplinary Rules of Professional task is to present the client's case with Conduct: persuasive force. 25

Lawyers, as guardians of the law, play a vital role in the preservation *717 It is also apparent from a close study of the more of society. As advisor, a lawyer concrete expectations of the Guidelines and Standards for provides a client with an informed Texas Capital Counsel: understanding of the client's legal The objective of these Guidelines is rights and obligations and explains to set forth a state-wide standard of their practical implications. As practice for the defense of capital cases advocate, a lawyer zealously asserts in order to ensure high quality legal the client's position under the rules of representation for all persons facing the adversary system. A lawyer acts the possible imposition or execution of as evaluator by examining a client's a death sentence by any State of Texas affairs and reporting about them to the jurisdiction. Counsel at every stage client or to others. In all professional

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have an obligation to conduct a full and omissions will be attributed to the examination of the defense provided capital client and will follow the client to the client at all prior phases of throughout all remaining proceedings the case. This obligation includes in state and federal court. It is a at a minimum interviewing prior dereliction of habeas corpus counsel's counsel and members of the defense duty to simply acquiesce to a capital team and examining the files of client's insistence that he or she ... prior counsel. Counsel at every stage wants to challenge only the conviction of the case, exercising professional but not the sentence. Counsel must judgment in accordance with these also inspect the evidence and obtain Guidelines, should [c]onsider all legal the files of trial and appellate counsel, claims potentially available; and [t scrutinizing them for what is missing ]horoughly investigate the basis for as well as what is present. Habeas each potential claim before reaching a corpus counsel must demand on behalf conclusion as to whether it should be of the capital client all resources asserted; and [e]valuate each potential necessary to provide high quality legal claim in light of ... [t]he importance representation, to conduct a thorough of protecting the client's right against investigation of both the conviction later contentions by the government and sentence, to procure documentary that the claim has been waived, evidence, and to retain experts. Habeas defaulted, not exhausted, or otherwise corpus counsel should consider every forfeited. Counsel who decide to legal claim potentially available, and assert a particular legal claim should thoroughly investigate the basis for [p]resent the claim as forcefully as each potential claim[.] 26 possible, tailoring the presentation to the particular facts and circumstances These are the expectations—the obligations—confronting in the client's case and the applicable Rytting as he seeks access to McCann's files on Turner. law. Habeas corpus counsel must understand that the state habeas corpus And this is the reality he faces: Investigating a client's proceeding is not a second direct case beyond merely reading the direct appellate record— appeal. Direct appeal-like, record- and reviewing trial counsel's case files in particular—is based claims are not cognizable in an indispensable first step in *718 proving ineffective state habeas corpus and can be assistance of counsel at the trial level. This is because fatal to the capital client. Counsel “[a] substantial risk of failure accompanies an appellant's should not accept an appointment claim of ineffective assistance of counsel on [a] direct if he or she is not prepared to undertake the comprehensive extra- appe[llate] ... record.” 27 On an appellate record, this Court record investigation that habeas corpus will presume that “[trial] counsel's conduct fell within the requires. [H]abeas counsel cannot rely wide range of reasonable professional assistance”—and in on the work of, or representations order to overcome this “strong presumption,” a claimant must made by, prior counsel to limit “affirmatively demonstrate the alleged ineffectiveness” in the the scope of the post-conviction appellate record. 28 But “[t]he record in a direct appeal may investigation. [C ]ounsel has a duty to well contain a less than adequate inquiry into possible tactical conduct a searching inquiry to assess reasons for various actions or omissions by counsel and whether any constitutional violations may lack completely trial counsel's own explanations for his may have taken place, including actions or inactions.” 29 Indeed, one of the crucial purposes ... ineffective assistance of trial ... of habeas corpus proceedings is to supplement the appellate counsel. State habeas corpus counsel's record so as to demonstrate trial counsel's ineffectiveness— lack of diligence, mistakes, missteps, in a way that the appellate record standing by itself typically

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—which will set the tone of his entire post-conviction pursuit will not. And while it might be said that Rytting could simply of relief—with claims of the ineffectiveness of trial counsel depose, seek affidavits from, or otherwise interview McCann that lack meaningful substantiation. Being purely record- to get the information he needs to prove ineffectiveness based, these claims would probably fail to “allege[ ]facts that, outside the direct appellate record, the Guidelines specifically state that “habeas counsel cannot rely on the work of, or if true, might entitle him to relief.” 36 If this is the case, he will representations made by, prior counsel to limit the scope most likely be denied an evidentiary hearing to develop the of the post-conviction investigation.” 30 To do so, in other facts—since he has been unable to allege concrete facts. 37 Instead, he will limp into federal court with what little fact- words, would be to compromise an ethical duty. 31 development he could muster from his investigation sans trial counsel's files, and this meager federal review will avail Even beyond filling in the important details of ineffectiveness him little, if anything. And at the end of it all, Turner may claims that are hinted at within—but not apparent from—the very well be executed without ever having a genuine shot at record, 32 habeas counsel's review of *719 trial counsel's proving that his trial counsel's assistance was deficient. files serves other important purposes in the preparation of an initial application for state habeas corpus relief. It can Judge Elliott believed it possible to resolve McCann and reveal whole swaths of a client's circumstances that, were they Rytting's ethical dilemma, and at the same time assure Turner simply not presented at trial, this Court might presume were the “competent counsel” that Article 11.071 envisions, 38 by left out for strategic purposes, but upon review of the file in its granting Rytting access to Turner's files. Perhaps his decision entirety would be more properly characterized as instances of was overly paternalistic. Perhaps it was ill-advised. Perhaps trial counsel's neglect or poor judgment—and potentially his it was even arguably incorrect as a matter of law (although ineffectiveness. 33 Habeas counsel's review of trial counsel's I doubt it). Nevertheless, I am unwilling to subject a trial files can, in addition, serve to aid the investigation of claims judge to the stigma of mandamus for a decision that was unrelated to trial counsel's ineffectiveness. It can serve, merely arguably incorrect. Mandamus is only appropriate for example, as a starting point for looking into whether when a relator's claim for relief is “clear”—not arguable— the State possesses undisclosed exculpatory evidence, 34 or and a claim for relief can only be “clear” when the law whether evidence exists that might establish the client's actual undergirding the claim is “well-settled.” 39 I think that the 35 innocence. Moreover, such a review can assist counsel to law in this area is demonstrably unsettled; at the very least it is separate specious claims of all kinds from those with potential insufficiently well settled to justify the extraordinary measure merit. In short, reviewing trial counsel's files provides an of mandamus. And even if I were wrong in this regard, I array of advantages to initial state habeas corpus counsel by would think it inappropriate to exercise *720 our discretion aiding him in his considerable investigatory task in addition so as to prevent a trial judge from saving a capital habeas to providing substance and depth to claims that might not applicant—even one who has not been declared incompetent otherwise stand a chance at succeeding. —from his own manifest paranoias. I respectfully dissent.

So should the Court overturn Judge Elliott's order today, Turner may have to submit his initial state habeas application

Footnotes 1 Based on the record, Turner's concern about OCW was that its employees are not paid by a political subdivision (usually counties), as are indigent-defense attorneys. He was skeptical of lawyers from OCW representing him because they are employed and paid by the State of Texas. 2 At the hearing on whether Turner would sign the release, OCW asked Turner if it would make a difference if he were represented by someone unaffiliated with the State, and Turner responded that “[i]t just depends on, you know, the relationship. That would make a difference, yes, but that still wouldn't make my decision up for me.” He also emphasized his need to speak with his sister, who he believed was looking for an attorney to handle Turner's postconviction writ application. 3 Initially, the trial court appointed John E. Wright, but he declined the appointment due to his employment at the Regional Public Defenders for Capital Cases in Lubbock.

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4 According to an affidavit signed by Rytting on February 6, 2013, Rytting had visited Turner in person at the Polunsky Unit twice and had attempted to meet him on other occasions. He also stated that Turner accepted file-release forms from him, and Turner told Rytting that he would think about executing them. 5 McCann's understanding of Turner's wishes stem from three separate incidents. The first incident was sometime before the hearing with OCW and McCann. At that time, McCann was discussing appellate counsel with his client when, according to McCann, Turner allegedly said, “I don't trust any of y'all. I don't want you to give them anything unless I approve it. My sister's going to hire me a lawyer. You keep the file until I tell you otherwise.” Later, Turner testified at the OCW–McCann hearing, and he stated that he would not sign the release, but he also indicated that he might be willing to sign it in the future. McCann took this as a continued refusal to turn the file over, while the trial judge was of the opinion that Turner was not refusing or agreeing to turn the file over. Finally, according to McCann, OCW asked him to write a letter to Turner about turning the file over, but whether this was before or after the hearing in which Turner testified is unclear. Nonetheless, McCann wrote the letter, but he stated that he never received a reply. 6 There is a split among courts that have considered this question. See generally Brian J. Slovut, Note, Eliminating Conflict at the Termination of the Attorney–Client Relationship: A Proposed Standard Governing Property Rights in the Client's File, 76 MINN. L.REV. 1483 (1992). Many jurisdictions follow the entire-file standard. That is, the client owns all of the documents within the client's file. Thus, a lawyer must relinquish the entire contents of the client's file upon request (assuming that there is no valid attorney lien). On the other hand, other jurisdictions follow the end-product standard that divides ownership between the client and the attorney. Id. at 1485. 7 In Burnett, the appellant, on direct appeal from her death sentence, argued that the trial court erred when it admitted into evidence a recorded pre-hypnotic interview between the appellant and a hypnotist hired by her attorneys. Burnett, 642 S.W.2d at 766–67. Before resolving the second question presented for our review—whether the attorney-client privilege prevented the admission of the tape into evidence—we first resolved the question of who owned the physical tape. In our analysis, we noted that the parties made “various characterizations” of the recording, including that the admission of the tape violated the appellant's attorney-client privilege, the work product of counsel, or the property rights of the hypnotist. However, we held that the recording, “as with deeds, notes, vouchers, documents and papers of a client,” belong to the client. We reached this holding due to the hypnotist's agency relationship with the appellant's attorneys who were in turn the appellant's agents. We also held that admission of the tape was error because the attorney-client privilege applied to exclude the tape from evidence. Id. at 769–70. However, because Turner's file has not been offered into evidence in this case, as the pre-hypnotic tape was in Burnett, today we need not address the privilege issue because it is not ripe for our review. 8 See, e.g., In re George, 28 S.W.3d 511, 516 (Tex.2000) (citing TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.15) (noting that “[t]he attorney is the agent of the client, and the work product generated by the attorney in representing the client belongs to the client”); Resolution Trust Corp. v. H––––, P.C., 128 F.R.D. 647, 648 (N.D.Tex.1989) (mem.op.) (holding that, under Texas law, the entire contents of a client's file belong to the client and the argument that “only another lawyer can be trusted with the file.... cannot be taken seriously....” because that practice “is contrary to the fiduciary and agency nature of the relationship between a client and an attorney.”); TEX. DISCIPLINARY RULES PROF'L CONDUCT; RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (2000); GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL (State Bar of Tex.2006); GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES (2003); TEX. COMM. ON PROF'L ETHICS, Ops. 395 (1979) (noting that an attorney who refuses to turn over a client's file is at risk of liability, even if asserting an attorney lien, because that attorney's actions may subsequently be deemed unethical and sanctionable), 411 (1984) (same), 570 (2006) (“A lawyer must, upon request, provide to a former client the notes of the lawyer from the lawyer's file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right such as a lawyer's lien, when the lawyer is required to withhold the lawyer's notes (or portions thereof) by court order, or when not withholding the notes (or portions thereof) would violate a duty owed to a third person or risk causing serious harm to the client.”); see also Smith v. State, 523 S.W.2d 1, 6 (Tex.Civ.App.–Corpus Christi 1975, writ ref'd n.r.e.) (sustaining disciplinary sanctions when an attorney claimed to assert an attorney lien in good faith on certain client files but was subsequently found by a unanimous jury to have withheld the file in bad faith). 9 Section (d) of Rule 1.15 states, Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law if such retention will not prejudice the client in the subject matter of the representation.

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TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.15(d). 10 We also note that, to perfect an attorney lien, the attorney must possess the papers he or she purports to have a lien on to receive payment for services rendered. See Thomson, 205 S.W. at 832 (holding that, to perfect an attorney lien, there are two requirements: (1) the property must actually be in the possession of the attorney, and (2) the property must have come into the possession of the attorney in his or her character as an attorney at law). However, this case has been brought specifically to prevent Rytting from obtaining Turner's trial file; thus, it is impossible for Rytting to perfect an attorney lien under these facts. 11 We address Rytting's argument only to the extent that it would require trial counsel to keep a copy of a client's file for the future use of successor counsel despite the client's wishes to the contrary. 12 According to these guidelines, the duty to facilitate the work of successor counsel includes (1) maintaining the records of the case in a manner that will inform successor counsel of all significant developments relevant to the litigation, (2) providing the client's file, as well as information regarding all aspects of the representation, to successor counsel, (3) sharing potential further areas of legal and factual research with successor counsel, and (4) cooperating with such professionally appropriate legal strategies as may be chosen by successor counsel. 13 Section F of Guideline 12.1, “Duties of Trial Counsel After Conviction[,]” states the following: Trial counsel should cooperate with successor direct appeal, habeas and clemency counsel in providing relevant information to successor counsel, including trial counsel's prior representation files upon the client's consent, in order to maintain continuity of representation, and to assist future counsel in presentation of issues relevant to subsequent litigation efforts. GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 12.1(F) (State Bar of Tex.2006) (emphasis added). 14 RESTATEMENT (THIRD) OF AGENCY § 8.09 (“An agent has a duty to comply with all lawful instructions received from the principal and persons designated by the principal concerning the agent's actions on behalf of the principal.”); see Gen. Motors Acceptance Corp./Crenshaw, Dupree & Milam, L.L.P. v. Crenshaw, Dupree & Milam, L.L.P./General Motors Acceptance Corp., 986 S.W.2d 632, 636 (Tex.App.–El Paso 1998, pet ref'd) (citing Cooper v. Lee, 75 Tex. 114, 12 S.W. 483, 486 (1889)) (holding that a “fiduciary relationship exists between attorneys and clients as a matter of law” and that “an agent must obey the lawful directions of its principal”). While McCann's obligation not to relinquish Turner's trial file may have also stemmed from his duty of confidentiality under the disciplinary rules, there is a more fundamental reason why McCann was obligated not to release Turner's trial file: because Turner owns the contents of his file, and the trial court attempted to require McCann to violate the instructions of his client and principal to whom he has a fiduciary duty. See In re George, 28 S.W.3d at 516 (characterizing the attorney-client relationship as one of principal and agent); Resolution Trust Corp., 128 F.R.D. at 648 (stating that the argument that “only another lawyer can be trusted with the file.... cannot be taken seriously....” because that practice “is contrary to the fiduciary and agency nature of the relationship between a client and an attorney”); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199–200 (Tex.2002) (“Our courts have long recognized that certain fiduciary duties are owed by ... an attorney to a client.”) (footnotes omitted); see also RESTATEMENT (THIRD) OF AGENCY §§ 8.01, 8.05 (characterizing the principal-agent relationship as a fiduciary one, and stating that an agent specifically “has a duty (1) not to use property of the principal for the agent's own purposes or those of a third party; and (2) not to use or communicate confidential information of the principal for the agent's own purposes or those of a third party”); TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.5 & cmt. (the comment states, in part, that “[b]oth the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidential information of one who has employed ... the lawyer”). The outcome in this case may have been different if Turner had been found incompetent (a question we do not answer today) and if, during the period of his incompetency, a guardian was appointed to make decisions in Turner's best interest, including turning over his trial file to successor counsel despite Turner's protestations to the contrary. 15 This comports with the agency entire-file approach followed in Texas (i.e., all of the contents of a client's file belong to the client). See supra note 6. Also, an attorney is required to vigorously advocate for his or her client's best interests, which can be defined by the client, although that attorney may believe that his or her strategy will result in a better outcome for the client. However, a client's ability to define his or her own best interests may end when an attorney's duty under Rule 1.02(g) of the Texas Disciplinary Rules of Professional Conduct begins—when an attorney reasonably believes that the client's ability to make decisions in his or her best interest is compromised, the appointment of a guardian should be sought. 16 For example, the relevant passage from the Restatement (Third) on the Law Governing Lawyers states, “If a former lawyer with whom the client made a privileged exchange and a lawyer now representing the client disagree on whether to assert the privilege, as between them the current lawyer-agent determines whether to assert or waive the privilege.” RESTATEMENT (THIRD) ON THE LAW GOVERNING LAWYERS § 86, rpt. cmt. c (2003). The quoted passage merely contemplates who should prevail in a disagreement between a client's former and current attorney. It does not state that a client's current attorney can assert the privilege against the

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client's objections. Rytting also cites Weinstein's Federal Evidence and Federal Practice and Procedure for the same proposition, but as we have explained, that proposition is not persuasive under these circumstances. 17 Although competency has not been directly raised in this proceeding, the competency of Turner was raised numerous times by McCann at trial. At the January 4, hearing regarding turning over of the file, the following exchange took place: [RYTTING]: So you don't believe Mr. Turner has made an intelligent decision about turning over the files, therefore authorizing me to get your files? [McCANN]: I'm not a psychologist. I did my best to sit there and bring forth the fact that I believe that he suffers from something that prevents him from making capable decisions, but that was not the decision of the Court, and in fairness to the Court, during the hearings we had, the psychological testimony, although voluminous, was fairly gray on several topics because [Turner] refused to talk to the psychologist that we sent to him, including Dr. Almeida. Later in the same hearing, McCann testified that “I'm placed in a catch–22. I have a client who's invoking the privilege, who is still legally competent, and I can't turn that over, even in the face of a court order....” Rytting asked McCann what his basis was for concluding that Turner is currently legally competent, and McCann responded that “the Court has found him competent. Given that, his invocation of privilege is proper.” We agree that McCann is in a precarious position given that Turner, thus far, has been ruled competent and refuses to release his trial file. 18 In an affidavit authored by Rytting, he agreed that Turner would not relinquish his trial file, and the record shows that Turner refused to sign the release (i.e., the functional equivalent of refusing to turn over the file). Unless Turner signs the release or a guardian is appointed, Rytting is bound by Turner's decision, or indecision, as the case may be. 19 See supra note 14. 20 While we are sympathetic to the plight of Rytting as the postconviction attorney for a client who refuses to assist his own attorney, we decline to abdicate our duty under our mandamus jurisprudence by allowing a trial court to “save” a capital defendant from his “own manifest paranoias” when a trial court has found the defendant competent, and the defendant chooses not to release his trial file. See Dissenting Op. at 720. Moreover, it is entirely unclear how this Court could justify creating, or applying, an unheard of and totally unsupported exception to our mandamus jurisprudence allowing a trial court in a capital case to “save” a defendant who suffers from “his own manifest paranoias.” Furthermore, there is no clear limiting principle for such an exception. For example, would this exception properly apply to only mandamus proceedings, only cases in which the death penalty was assessed, or all cases in which a defendant suffers from his or her own manifest paranoias but is not incompetent? Also, it is not clear who would determine whether a defendant suffers from “manifest paranoias” or what the standard of review for such a conclusion would be. 21 In a death-penalty case, appellate timelines are of the utmost importance for at least two reasons. First, when the death penalty is assessed, a criminal defendant's interest in zealous representation is at its peak. Second, filing deadlines in capital felony cases are different than in other cases. The Texas Constitution and the Texas Code of Criminal Procedure state that capital cases in which the death penalty is assessed are appealed directly to the Court of Criminal Appeals. TEX. CONST. art. V, § 5(b); TEX.CODE CRIM. PROC. art. 37.071(h). In addition, Section 4(a) of Article 11.071 of the Texas Code of Criminal Procedure states that an application for a writ of habeas corpus must be filed “not later than the 180th day after the date the convicting court appoints counsel ... or not later than the 45th day after the date the state's original brief is filed on direct appeal with the court of criminal appeals, whichever date is later.” TEX.CODE CRIM. PROC. art. 11.071, § 4(a) (dealing with applications for writs of habeas corpus in capital cases in which the death penalty was assessed). 22 See Stearnes v. Clinton, 780 S.W.2d 216, 223 (Tex.Crim.App.1989) (orig.proceeding) (granting conditional mandamus relief). In Stearnes, we held that a trial court that acts without inherent power acts without authority, and that a relator satisfies “the first prerequisite for mandamus relief” when he or she shows that a trial court acted without authority. Id. Furthermore, under Section 21.001 of the Texas Government Code, “[a] court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue the ... orders necessary or proper in aid of its jurisdiction.” TEX. GOV'T CODE § 21.001(a). Neither order issued by the trial judge in this case was issued to enforce its jurisdiction, and we have not been directed to, nor are we aware of, any inherent or explicit authority authorizing the trial court to enter such orders. 23 Ex parte Thompson, 273 S.W.3d 177, 181 (Tex.Crim.App.2008) (holding that the Court of Criminal Appeal's original jurisdiction for writs of habeas corpus under the Texas Constitution allows it to review orders of contempt entered by district courts); see TEX. CONST. art. V, § 5(c); 13 TEX. JUR.3DContempt § 69 (2011). 24 We dismiss McCann's petition for writ of prohibition. See Weeks, 391 S.W.3d at 126 n. 43. 1 Majority Opinion at 704–05. 2 Id. at 710–11. 3 Id. at 710 n. 22. 4 See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05(b)(1) (“[A] lawyer shall not knowingly ... [r]eveal confidential information of a client or former client to ... a person that the client has instructed is not to receive the information[.]”).

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5 See TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶ 1 (“A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.... A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.”). 6 Id. at 704–05 & n. 8 (citing In re George, 28 S.W.3d 511, 516 (Tex.2000)). 7 George, 28 S.W.3d at 516. 8 Id. at 515–16 (“Once they determine that a restriction [on disclosure] is necessary because an attorney has been disqualified for a prior, substantially related representation, some courts do not inquire into the work product itself. They automatically forbid any work product from being transferred [over the client's wishes] to the successor attorney ... This approach may be appropriate for cases in which the entire suit is based on improperly revealed confidential information ... But we believe that it is inappropriate for a general rule.”). 9 My concerns about the Court's conclusion are not dependent upon, nor do they stem from, any issues relating to Turner's present competency. To the contrary, irrespective of Turner's mental capacity to make decisions affecting his post-conviction pursuit of relief, my concerns relate only to what I perceive to be the unsettled state of the law. 10 Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE § 503.3, at 411 (3d ed.2002). 11 Id. (emphasis added). The explanation in a previous edition was even more to-the-point: “Protection against non-compelled disclosure of a client's confidential communications to his attorney comes from the Texas Disciplinary Rules of Professional Conduct.” Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 503.2, at 327 (2d ed.1993) (emphasis added). See also Robert A. Pikowsky, Privilege and Confidentiality of Attorney–Client Communication Via E-mail, 51 BAYLOR L.REV. 483, 490–91 (1999) (“Of course, a professional who is called to testify in judicial proceedings cannot lawfully refuse to do so based exclusively on a duty of confidentiality in the absence of any recognized privilege. Unless a privilege exists as well, the court can properly require the professional's testimony.”); Mitchell M. Simon, Discreet Disclosures: Should Lawyers Who Disclose Confidential Information to Protect Third Parties Be Compelled to Testify Against Their Clients?, 49 S. TEX. L.REV. 307, 315 (2007) (“The key difference between confidentiality, which governs a lawyer's voluntary actions, and privilege is that privilege trumps a court's authority to compel testimony.”) (emphasis added). 12 TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05(c)(4) (emphasis added). 13 See TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.05 cmt. 22 (“[A] lawyer may be obligated by other provisions of statutes or other law to give information about a client. Whether another provision of law supersedes Rule 1.05 is a matter of interpretation beyond the scope of these Rules.”) (emphasis added). 14 See, e.g., TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶¶ 11–16 (“The[se] rules presuppose a larger legal context ... [which] includes court rules and statutes relating to matters of ... laws defining specific obligations of lawyers and substantive and procedural law in general. [* * *] These rules make no attempt to prescribe either disciplinary procedures or penalties for violation of a rule. [* * *] Violation of a rule ... does [not] create any presumption that a legal duty to a client has been breached ... The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of disciplinary authority, does not imply that an antagonist in a collateral proceeding ... has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. [* * *] Moreover, these rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege.”) (emphasis added). 15 Majority Opinion at 704–05 & n. 7, 709–10 & n. 19. 16 See id. at 709. 17 642 S.W.2d at 769. 18 28 S.W.3d at 512 (citing TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.09(a)). 19 It could be argued, I suppose, that Turner's property interest works in tandem with McCann's “fiduciary duty,” Majority Opinion at 707–08 & n. 14, to place limits on the trial court's authority to order a relinquishment of Turner's property. But again, the fact that McCann has an ethical duty to his client does not necessarily imply that Judge Elliott has a clear legal duty to rule in favor of McCann. And I do not understand how the aggregation of one arguably authority-limiting consideration (property rights) with one arguably non-authority-limiting consideration (fiduciary duty) results in a decidedly authority-limiting consideration that is somehow greater than the sum of its parts. 20 See TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶ 2 (“As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.”). 21 See George E. Dix and John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 61:3, at 930 (3d ed.2011) (citing Dickens v. Court of Appeals for Second Supreme Judicial District of Texas, 727 S.W.2d 542, 549 (Tex.Crim.App.1987) (“Mandamus is an extraordinary writ, and is not issued as a matter of right, but rests largely in the sound

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discretion of the Court.”) (citation omitted); Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 585 (Tex.Crim.App.1993) (“[M]andamus is a drastic remedy, to be invoked only in extraordinary situations.”) (alteration in original) (citation omitted)). 22 Id. 23 In re McCann, Nos. AP–76,998 & AP–76,999, 2013 WL 1149840, at *1 (Tex.Crim.App. Mar. 20, 2013) (per curiam) (not designated for publication). 24 George E. Dix and John M. Schmolesky, 43B TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 61:3, at 930 (3d ed.2011). 25 TEX. DISCIPLINARY RULES PROF'L CONDUCT preamble ¶¶ 1–3, 6, R. 1.01(b)(1) & cmt. 1, 6, R. 1.02(a)(1) & cmt. 1, R. 3.01 cmt. 1, R. 3.03 cmt. 1 (emphases added and some ellipses omitted throughout). 26 GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 1.1(A), 11.1(B), 11.2(A), 11.2(B)(1), 12.2(B)(1)(b), 12.2(B)(2)(c), 12.2(B)(3)(b), 12.2(B)(6)(a), 12.2(B)(7)(b) (State Bar of Tex.2006) (emphases added and some ellipses omitted throughout). 27 See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). 28 Id. at 813–14. 29 Id. at 814 n. 5 (citing George E. Dix and Robert O. Dawson, 41 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 24.94 (2d ed.1995)). 30 GUIDELINES AND STANDARDS FOR TEXAS CAPITAL COUNSEL 12.2(B)(1)(b) (State Bar of Tex.2006). 31 Indeed, it is arguable that Rytting is ethically bound to at least investigate a claim of ineffective assistance even against his client's expressed wishes. Cf. Summerlin v. Schriro, 427 F.3d 623, 638–39 (9th Cir.2005) (“[A] lawyer's duty to investigate [mitigation issues] is virtually absolute, regardless of a client's expressed wishes ... [E]ven when faced with client directives limiting the scope of defense, an attorney must conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client.”) (internal quotation marks omitted) (quoting Silva v. Woodford, 279 F.3d 825, 838–46 (9th Cir.2002)); Harries v. Bell, 417 F.3d 631, 638 (6th Cir.2005) ( “[A] ‘defendant['s] resistance to disclosure of information does not excuse counsel's duty to independently investigate.’ ”) (quoting Coleman v. Mitchell, 268 F.3d 417, 449–50 (6th Cir.2001)); Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986) (“[A] lawyer[ ] may not ‘blindly follow’ [the client's] commands [because] although the decision whether to use [mitigation] evidence in court is for the client ... the lawyer first must evaluate potential avenues and advise the client of those offering possible merit.”) (quoting Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir.1983)). In any event, this Court has yet to hold otherwise. And the ineffectiveness of trial counsel is, to say the least, an extremely important claim to make, as evidenced by the fact that it is one of the most often-litigated claims in a writ application. See Gary Udashen, Designating and Determining Issues on An Applications for Writ of Habeas Corpus, Texas Center for the Judiciary 2009 Writs Training Conference at 6 (2009). 32 For example, at the October 7, 2011 OCW–McCann hearing, the following exchange took place between Turner and counsel for McCann: [Counsel for McCann:] Do you think that Mr. McCann did a good job in your trial? [Mr. Turner:] (Shakes head negatively). [Counsel for McCann:] Is that a no? [Mr. Turner:] (No response). [Counsel for McCann:] You can say it. It's okay. You're not going to hurt anybody's feelings. [Mr. Turner:] No. 33 See, e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). 34 See, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 35 See, e.g., Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996). 36 See Ex parte Medina, 361 S.W.3d 633, 638 n. 10 (Tex.Crim.App.2011). 37 Id. at 637–38 (where a habeas applicant makes conclusory allegations in his initial writ application, even remanding to the trial court for further factual development is inappropriate). 38 TEX.CODE CRIM. PROC. art. 11.071, § 2. 39 In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App.2013).

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