Turner, Albert James

Opinion

WR-80,559-02

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 1/23/2015 4:10:56 PM Accepted 1/23/2015 4:24:29 PM ABEL ACOSTA

NO. WR-80,559-02 CLERK

IN THE COURT OF CRIMINAL APPEALS RECEIVED COURT OF CRIMINAL APPEALS STATE OF TEXAS 1/23/2015 ABEL ACOSTA, CLERK

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

IN RE JAMES ALBERT TURNER VS.

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

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

JOHN F. HEALEY, JR.

District Attorney, 268th Judicial District Fort Bend County, Texas

Fred M. Felcman

First Assistant District Attorney

Gail Kikawa McConnell

Assistant District Attorney SBOT #11395400

Fort Bend County, Texas

301 Jackson Street, Room 101 Richmond, Texas 77469

(281) 341-4460 / (281) 238-3340 (fax)

Gail.McConnell@fortbendcountytx.gov

Counsel for the State of Texas, Real Party in Interest

IDENTITY OF PARTIES AND COUNSEL Pursuant to Tex. R. App. P. 52.4, the State supplements relator’s list of counsel as follows: For The State of Texas, Real Party in Interest

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

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3 ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 CERTIFICATE OF COMPETENT EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 APPENDIX A: State’s answer to Turner’s motion to address current competency

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INDEX OF AUTHORITIES

CASES PAGE

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

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

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

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

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

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

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

STATUTES AND RULES

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

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NO. WR-80,559-02

IN THE COURT OF CRIMINAL APPEALS STATE OF TEXAS

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

IN RE JAMES ALBERT TURNER VS.

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

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

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

STATEMENT OF THE CASE

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

On remand, the trial court shall first determine whether it is presently feasible to conduct a retrospective competency trial, given the passage of time, availability of evidence, and any other pertinent considerations.

Should the trial court deem a retrospective competency trial to be feasible, it shall proceed to conduct such a trial in accordance with Chapter 46B, Subchapter C, of the Code of Criminal Procedure.

Regardless of whether the trial court deems a retrospective competency trial to be feasible, the record of the proceedings on remand shall then

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be returned to this Court for reinstatement of the appeal.

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

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

STATEMENT OF FACTS

On May 30, 2014, the trial court held a hearing on the feasibility of a retrospective competency trial. [Pet. Ex. B, RR-5/30/14 at 1] At that hearing, for the first time, Turner presented the Court with Greene v. State, 264 S.W.3d 271, 272 (Tex. App.--San Antonio 2008, pet. ref’d), holding that a defendant must be currently competent to stand a retrospective competency trial. [Pet. Ex. B, RR-5/30/14 at 6] In an abundance of caution, the trial court invited Turner and the State to each submit the name of a psychiatrist to evaluate Turner for contemporary competency. [Pet. Ex. B, RR-5/30/14 at 16, 17-18]

The trial court appointed Dr. Mary Alice Conroy a psychologist on the recommendation of Appellant, and Dr. Mark Moeller, a psychiatrist on the recommendation of the State. Turner refused to see both doctors. [Appendix A, being a copy of the State’s answer to Turner’s motion to determine his current competency, Exhibits A & B]

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

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this cause for trial on December 1, 2014.

On December 1, 2014, the Court reset the retrospective hearing to January 26, 2015. On January 16, 2015, Turner re-urged his motion to determine current competency, which the trial court denied after reaffirming its determination that the retrospective competency trial was feasible. [App-Ex E at 1, 15-16]

ARGUMENT

In two issues, Relator asserts the trial court “abused its discretion” in determining a retrospective competency trial without due process. The crux of both issues is that Relator believes he is entitled to a jury trial on his contemporary competency. Relator omits the State’s answer to his motion in the trial court. The State files this response to supplement the record with the State’s answer to Turner’s motion, which shows that the trial court did not abuse its discretion in proceeding without a jury trial on his contemporary competency. See Appendix A, being a copy of the answer.

Further, Relator fails to show this Court that he has no adequate remedy in the appeal of the jury’s determination of his retrospective competency. See Barber v. State, 757 S.W.2d 359 (Tex. Crim. App. 1988). The issue of whether a contemporary competency must be determined before a retrospective competency trial is held has been determined by courts in other states on appeal from the retrospective

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competency trial. See, Ryder v. State, 83 P.3d 856, 870-71 (Okla. Crim. App.), cert. denied 543 U.S. 886 (2004) (death penalty case); and State v. McRae, 594 S.E.2d 71, 79 (N.C. Ct. App.), pet. denied 599 S.E.2d 911 (N.C. 2004). See also, Huggins v. Crews, 2014 WL 5026425, at *4 (Fla. Oct. 9, 2014) (on appeal of the denial of post conviction relief in a death penalty case, deciding that the trial court did not abuse its discretion in failing to hold competency proceedings prior to the evidentiary hearing on whether Huggins was competent to proceed with post conviction matters).

Relator has an adequate remedy on appeal of the retrospective competency trial. Relator’s petition should be denied.

Relator relies on this Court’s opinion on direct appeal, remanding this case for a competency trial in part because the trial court appointed an expert to evaluate Turner for competency to stand trial:

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

Turner, 422 S.W.3d 676.

As shown in the reporter’s record of the May 16, 2014, hearing on the feasibility of a retrospective competency hearing, the trial court never doubted that Turner was competent to stand trial, but had appointed Dr. Almeida and heard her

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

This case is again in the same posture as at trial. The trial court again appointed experts to evaluate Turner for contemporary competency at the urging of counsel on the questionable authority of Greene v. State, 264 S.W.3d 271, 272 (Tex. App.--San Antonio 2008, pet. ref’d). Greene cited no authority in requiring contemporary competency for a retrospective competency trial. Greene is the only authority cited by Turner to require a trial court to determine contemporary competency for a retrospective competency trial, and the State has found no other case to so require.

Rather, the State has found contrary authority holding that no finding of contemporary competency is required for a retrospective competency trial. See, Ryder v. State, 83 P.3d 856, 870-71 (Okla. Crim. App.), cert. denied 543 U.S. 886 (2004) (death penalty case); and State v. McRae, 594 S.E.2d 71, 79 (N.C. Ct. App.), pet. denied 599 S.E.2d 911 (N.C. 2004). See also, Huggins v. Crews, 2014 WL 5026425, at * (Fla. Oct. 9, 2014). See also, Moore v. Superior Court, 237 P.3d 530, 543 (Calif. 2010) (holding that although the Sexually Violent Predators Act provides “the person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings,” the person does not have a due process competence right in part because such “could prevent an SVP determination from

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being made at all”).

The State’s petition for discretionary review in Greene did not raise the question of whether contemporary competency was required for a retrospective competency trial. [App. A, Ex F] Whether the Court would require contemporary competency is a question that may be taken by Turner on appeal.

The trial court appointed, “in an abundance of caution” to give the Court a full record, two experts to evaluate Turner. Turner refused to be evaluated for competency. That is his choice. The presumption of competency should prevail. Tex. Code Crim. Proc. art. 46B.002(b) (West 2014). Turner tendered no evidence, other than the arguments of counsel, to show otherwise.

Article 46B.005 requires “that evidence exists to support a finding of incompetency,” before a trial is required. Tex. Code Crim. Proc. art. 46B.005(b) (West 2014). That phrase should not require a trial just because a trial court appointed experts “in an abundance of caution” to assure the court that it did not miss what trained psychiatric experts might see. Given the presumption of competency, the bar on “evidence exists to support a finding of incompetency” should not be set so low that any argument of incompetency by defense attorneys--without any valid expert finding of incompetency, without any prior history of mental illness, without any report by family members or friends of mental illness, without any showing of

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brain injury--should require a trial on competency.

PRAYER

Real party in interest, The State of Texas, prays that the petition for Writs of Mandamus and Prohibition be denied.

Respectfully submitted,

John F. Healey, Jr.

SBOT 09328300

District Attorney, 268th Judicial District Fort Bend County, Texas

/s/ Fred M. Felcman

SBOT # 06881500

First Assistant District Attorney

/s/ Gail Kikawa McConnell SBOT # 11395400

Assistant District Attorney 301 Jackson Street, Room 101 Richmond, Texas 77469

(281) 341-4460 /(281) 238-3340 (fax)

Gail.McConnell@fortbendcountytx.gov

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CERTIFICATE OF COMPETENT EVIDENCE I hereby certify that I have reviewed the foregoing petition and every factual statement is supported by competent evidence included in the appendix or record.

/s/ Fred M. Felcman

Fred M. Felcman

CERTIFICATE OF COMPLIANCE I hereby certify that the State’s Response to the petition for writ of mandamus, in total contains 1,878 words as counted by WordPerfect 12, which is less than the 15,000 word limit for a response to an original petition. Tex. R. App. 9.4(i)(2)(B).

/s/ Gail Kikawa McConnell Gail Kikawa McConnell

CERTIFICATE OF SERVICE

I hereby certify that a copy of the State's response was served by electronic mail on January 23, 2015, on Robert Morrow and Amy Martin, attorneys for Relator, and on Hon. Brady G. Elliott, Judge, 268th District Court, Respondent.

/s/ Gail Kikawa McConnell Gail Kikawa McConnell

APPENDIX A