NO. ___________________

IN THE TEXAS COURT OF CRIMINAL APPEALS

IN RE ALBERT JAMES TURNER

Original Proceeding from the 368 th District Court of Fort Bend County, Texas

The Honorable Brady Elliott, Presiding Judge
Trial Court Cause No. 10 -DCR-054233

PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION
*Death Penalty Case*

Attorneys for Albert James Turner

ORAL ARGUMENT REQUESTED ROBERT A. MORROW State Bar No. 14542600 24 Waterway Ave., Suite 660 The Woodlands, Texas 77380 Telephone: 281

- 379

- 6901 ramorrow15@gmail.com AMY MARTIN State Bar No. 24041402 202 Travis St., Suite 300 Houston, Texas 77002 Telephone: 713

- 320

- 3525 amymartinlaw@gmail.com WR-80,559-02 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 1/21/2015 12:36:30 PM Accepted 1/21/2015 4:42:01 PM

ABEL ACOSTA CLERKIDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 52.3(a) , the Relator identifies the following parties and

the names and address of counsel:

1. Relator

Albert James Turner Represented by:

Robert A. Morrow State Bar No. 14542600 24 Waterway Ave., Suite 660 Woodlands, Texas 7 7380 Telephone: 281

- 379

- 6901

r amorrow15@gmail.com
Amy Martin State Bar No. 24041402 202 Travis St., Suite 300 Houston, Texas 77002 Telephone: 713

- 320

- 3525 amymartinlaw@gmail .com

2. Respondent

The Honorable Brady Elliott Trial Court Judge 368 th Judicial District Court of Fort Bend County, Texas 1422 Eugene Heimann Circle Richmond, Texas 77469 Telephone: 281

- 341

- 8610 Fax: 281

- 341

- 86143

3. Real Party in Interest

The State of Texas

Represented by:
John F. Healy, Jr. Fort Bend County District Attorney

Fred Felcman Assistant Criminal District Attorney 1422 Eugene Heimann Circle Richmond, Texas 77469 Telephone: 281

- 341

- 4460 Fax: 281

- 341

- 4440 Fred.Felcman@fortbendcountytx.gov4 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL

_____________________________ 2

TABLE OF AUTHORITIES

________________________________ _________ 5

I. INTR ODUCTION

________________________________ _______________ 6

II. STATEMENT OF THE CASE

________________________________ _____ 6

III. STATEMENT OF JURISDICTION

________________________________ _ 7

IV. ISSUES PRESENTED

________________________________ ___________ 7

1. T HE T RIAL C OURT ABUSED ITS DISC RETION BY MAKING A F EASIBILITY

DETERMINATION OF R ELATOR ’ S RETROSPECTIVE COMP ETENCY TRIAL WITHOUT
D UE P ROCESS

________________________________ ____________________ 7

2. T HE T RIAL C OURT ABUSED ITS DISC RETION BY PROCEEDING TO R ELATOR ’ S

RETROSPECTIVE COMPET ENCY TRIAL WITHOUT T HE FEASIBILITY DETER MINATION

THAT D UE P ROCESS REQUIRES

________________________________ _______ 7

V. STATEMENT OF FACTS

________________________________ ________ 8

VI. ARGUMENT

________________________________ _________________ 13

VII. CONCLUSION AND PRAYER

________________________________ __ 16

CERTIFICATION

________________________________ ________________ 17

CERTIFICATE OF COMPLIANCE

________________________________ _ 17

APPENDIX

________________________________ ______________________ 18

CERTIFICATE OF SERVICE

________________________________ _______ 195 TABLE OF AUTHORITIES

CASES

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)

................................ .... 8

Buntion v. Harmon , 827 S.W.2d 945 (Tex. Crim. App. 1982)

............................... 14
Caballero v. State , 587 S.W.2d 741, 743 (Tex. Crim. App. 1979)

......................... 13 Drope v. Missouri , 420 U.S. 162, 183 (1975)

................................ ........................... 8 Ex parte Alba , 256 S.W.3d 682 (Tex. Crim. App. 2008)

................................ ........ 13 Ex rel. Hilbig v. McDonald , 877 S.W.2d at 470 (Tex. Crim. App. 1982)

............... 14
Greene v. State , 264 S.W.3d 271 (Tex. App.

— San Antonio 2008)

.......................... 8 Greenwell v. Court of Appeals for Thirteenth Judicial Dist. , 159 S.W.3d 645, 648

- 49 (Tex. Crim. App. 2005)

................................ ................................ ................... 15

In re McCann , 422 S.W.3d 701, 704 (Tex. Crim. App. 2013)

................................ 14

In re Reece , 341 S.W.3d 360, 375 (Tex. 2011)

................................ ......................... 7
In re State ex re. Weeks , 391 S.W.3d 117, 121

- 22 (Tex. Crim. App. 2013)

........... 13
Padilla v. McDaniel , 122 S.W.3d 805, 806 (Tex. Crim. App. 2003).

....................... 7
Smith v. Flack , 728 S.W.2d 784, 792 (Tex. Crim. App. 1987

................................ . 15
Turner v. State , 422 S.W.3d 676, 696

- 97 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014)

................................ ................................ ................................ .......... 6
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)

................................ ............ 14
RULES Tex. R. App. P. 52.3(a)

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

................................ ....................... 17
CONSTITUTIONAL PROVI SIONS Tex. Const. Art. V, § 5

................................ ................................ ............................... 76

TO THE HONORABLE JU DG ES OF THE TEXAS COURT OF CRIMINAL
APPEALS:

Now comes Albert James Turner
, Relator , by and through his undersigned

c ounsel
, and files this Petition for Writ of Mandamus and Petit i on for Writ of

Prohibition , and would respectfully show the Court as follows:

I. INTRODUCTION
Relator requests that this Court enforce its opinion and direct Respondent to

ma ke the determination of feasibility that Due Process requires
, prior to conducting
a retrospective competency trial. This Court has consistently held that a
retrospective competency trial is only constitutionally permissible if it is found to be

feasible , and Mr. Turner’s case is no different. Turner v. State , 422 S.W.3d 676,

696

- 97 (Tex. Crim. App. 2013), reh'g denied (Apr. 2, 2014)

.

I I . STATEMENT OF THE CASE
Underlying proceeding
Mr. Turner was , in violation of his Due Process right s , denied a competency
trial during his capital murder trial in which he was sentenced to death

. This Court

instructed the trial court to determine if a retrospective competency trial is feasible.
If it is not, the record of the proceedings on remand are to be sent to this Court to
resume appellate review. Id.7

Respondent and Respondent’s actions Respondent is The Honorable Brady Elliott presiding over the 268 th District
Court in Fort Bend County, Texas. Judge Elliott has denied Mr. Turner Due Process
by neglecting to make a proper feasibility determination prior to the imminent
retrospective competency trial

.

I II . STATEM ENT OF JURISDICTION
This Court has j urisdiction to issue writs of mandamus and writs of
prohibition in criminal matters

. See Tex. Const. Art. V , § 5 ; see also In re Reece
,
341 S.W.3d 360, 375 (Tex. 2011)

. This is a capital m urder case in which the death
penalty was assessed and therefore this petition is properly filed in thi s Court.

Padilla v. McDaniel , 122 S.W.3d 805, 806 (Tex. Crim. App. 2003)

.
I V . ISSUES PRESENTED

1. T HE T RIAL C OURT ABUSED ITS DISC RETION BY MAKING A

FEASIBILITY DETERMIN ATION OF R ELATOR ’ S RETROSPECTIVE

COMPETENCY TRIAL WIT HOUT D UE P ROCESS

2. T HE T RIAL C OURT ABUSED ITS DISC RETION BY PROCEEDING TO
R ELATOR ’ S RETROSPECTIVE COMP ETENCY TRIAL WITHOUT THE

FEASIBILITY DETER MINATION THAT D UE P ROCESS REQUIRES8 V

. STATEMENT OF FACTS
Feasibility first

T his Court reman d ed this case because of a Due Process violation

— an
improper denial of a competency trial. The only possible remedy for that error is a
retrospective competency trial. However, before conducting that trial, the trial court

must “first determine whether it is presently feasible to conduct a re trospective
competency trial.” Id. The feasibility determination is critical because of the

inher ent difficulties in these types of trials. 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)

. The proceeding must be ruled feasible for it t o go forward to ensure Mr.
Turner’s due process rights are protected

. Drope v. Missouri , 420 U.S. 162, 183

(1975)

.
Counsel’s concerns

At a May 30, 2014 hearing
, defense counsel requested a competency exam to

determine Mr. Turner’s current competence 1

. See Exhibit B : May 30, 2014
Reporter’s Record on Determination of Retrospective Competency

. The request was

1 The request was based , in part, upon the opinion Greene v. State , 264 S.W.3d 271 (Tex. App.

— San Antonio 2008) in which the Court of Appeals found it unfeasible to have a retrospective competency trial because Appellant was incompetent and was “expected to remain incompetent
for the indefinite future.” Id. at 272.9

prompted by counsel’s unsuccessful attempts to communicate with Mr. Turner and
particular concern for Mr. Turner’s lack of understanding of the proceedings given
the very unusual legal posture of his case.
His perception of his attorneys and the legal system seems to be the same as

it was at trial, but it’s radicalized. While he knows that this proceeding has
something to do with competency, he believes it is a ruse so the judge and his lawyers

can preve nt him from filing motions; his motions have to be secret because if his
lawyers hear about it they’ ll shut him down. He frequently refers back to issues at
trial, such as the deposit i on video that he knows was edited to hide exculpatory

information from the jury. He is angry that his appellate lawyer, who represents him
at this stage, didn’t bring this video issue up and knows that “he’s the one that’s
really trying to kill me 2 .”
Feasibility in the future
Respondent agreed that Mr. Turner ’s current competency was relevant to
going forward

. He also explained the standard he would use to determine

competency: “

. . . that is a finding that we’ve always followed in the law of

2 Mr. Turner made these statements, and many more, during a jail phone call with his sister on November 3, 2014. Counsel does not have an official transcript of the call, but has listened to it,

an d many others, in its entirety. It is part of the discover y provided by the State.10

competency that if the person won’t cooperate and won’ t participate , they are
determined to be competent.” Id. at 8. Respondent ruled :
Because the request is a due process request to assi s t counsel; and,
therefore it would be the same standard as we use for trial. And I think
that would

– In the abundance of caution, I think that would be the best way to proceed; and we can get this done at the earliest convenience; and dependent upon their [experts] findings, we’ll hold a hearing very shortly thereafter to proceed to the feasibility part of this issue.
Id.

Counsel for the s tate and Relator each chose experts to conduct evaluations 3

. 3 doctors attempted to interview Mr. Turner and he refused to see each of them 4

. Feasibility forgotten
On September 25, 2014 , with no other hearing since May 30 th

, a 1 page Order
was sent to the parties stating :
On this day, the Court considered whether a retrospective competency trial is feasible. After hearing the arguments of counsel, and considering the evidence available, the Court finds that a retrospectiv e competency trial is feasible.

3 The State requested the court appoint Dr. Mitchell Dunn and then requested Dr. Dunn be replaced with Dr. David Self, who had to withdraw from the case, and ultimately they chose Dr. Mark Moeller to attempt to interview Mr. Turner . The Defense asked Dr. Mary Alice Conroy to interview Mr. Turner. Ultimately Dr. Self was able to attempt to see Mr. Turner. Mr. Turner refused to see Dr. Moeller, Dr. Conroy, and Dr. Self.11

See Exhibit C Order on Feasib i lity of Retrospective Competency Trial

. Trial was

set for December 1, 2014. The Order had been attached to the April 28, 2014 State’s

Bench Memorandum on the Feasibility of a Retroactive Competency Hearing 5

. See

Exhibit D. In fact, t here was never a discussion or presentation of the “evidence
available” and there were no “arguments of counsel.”
Requesting review of the feasibility
On defense counsel’s request, a pre

- tria l hearing was held on January 16 , 2015

to ask the court to conduct a feasibility determination that meets the requirements of

Due Process. See Exhibit E January 16, 2015 Reporter’s Record Motions Hearing,

Volume I

. At that time, defense counsel also presented Defendant’s Motion to
Address Mr. Turner’s Current Incompetency and Brief in Support

. Exhibit F.
Incomplete inquiry
Respondent denied Mr. Turner’s request and maintained that he had already
appropriately determined feasibility at the May 30 th hearing

. Id. at pp.12 ,15

. However, o n May 30 th

, the only decision that had been made was that Mr. Turner’s

current competency was relevant and that he should be evaluated by mental health

5 The Memorandum included a list of video visits and phone ca lls from the time of trial that purportedly showed that there was enough evidence to have a retrospective competency trial.12

professionals 6

. Respondent described what he believed to be the feasibility

determination:

I, in fact, conducted a hearing on May 30th of '14 where I found that it was feasible to go forward with the competency exam

-- or feasible to go forward with a retrospective competency hearing. I also ordered at that time another competency exam with Mr. Tu rner, and he refused to talk to the doctors that I sent up to talk to him, so the feasibility issue has already been decided.

Id. at 12. Respondent refers to “all the evidence that is going to be produced
is his competency at the time of the Trial on the Merits.” Id. at 13 . The criminal
proceedings against Mr. Turner began 4 years ago. As the prosecutor pointed out,
among other things, R espondent is supposed to evaluate the “passage of time” and

“ the quality and quantity of the evidence.” Id. at 10. Additionally , this Court

ordered the Respondent to consider “any other pe r tinent considerations” when
making the feasibility determination

. Turner at 696.

There has never been a review of anything other than Mr. Turner’s refusal to
speak with experts . There has been no discussion regarding the availability of lay
and expert witnesses, the recall of those witnesses, events that have occurred since

the trial
, or any other “pertinent considerations.”

6 In its State’s Motion for Enforcement of the Trial Court’s Limited Jurisdiction on Remand , the State describes the hearing as “a p rocedural and scheduling hearing.” Exhibit G p .213

Respondent only looked at one issue. That limited and superficial evaluation

of the evidence is n ot what this Court ordered and it is not enough to constitute a
feasibility determinat ion consistent with Due Process such that a retrospective
competency trial can be conducted.
Straight to trial
At present, the re has been no testimony, evidence
, or argum ents regarding
feasibility

. 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)

. Therefore, a proper determination requires facts. Due

Process demands that Mr. Turner be given the opportunity to provide information to

the trial court and that the information is thoughtfully considered.

V I . ARGUMENT

A. Applicable Mandamus Law
There are two requisites necessary in order to obtain relief on a writ of

mandamus: (1) the act sought to be compelled is ministerial and (2) the party seeking

relief mus t show that there is no adequate remedy at law 7

. In re State ex re. Weeks
, 391 S.W.3d 117, 121

- 22 (Tex. Crim. App. 2013)

.

7 The same requirements apply to writs of prohibition. See Ex parte Alba
, 256 S.W.3d 682 (Tex. Crim. App. 2008)

.14

“Clear right to the relief sought”
In this context, a ministerial act is one which is “clearly compelled by the legal
authority extant in a given situation.” Ex rel. Hilbig v. McDonald , 877 S.W.2d at
470 (citing Buntion v. Harmon , 827 S.W.2d 945, 947

- 48 n.2 (Tex. Crim. App.

1982 ) ). As this Court has recognized, the clear right to the relief sought is the
functional equivalent o f a ministerial act

. Id . (citation omitted).
To show “a clear right to the relief sought,” Mr. Turner must show that th e

facts and circumstances of this case “dictate but one rational decision ‘under
unequivocal, well

- settled

. . . and clearly controlling legal principles.’ ” In re

McCann
, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013 ) ( quoting Weeks
, 391 S.W.3d

at 117) 8

. Exhibit H

. Upon remand, this Court ordered an evaluation of all “pertinent
considerations” to determine if a retrospective competency trial was feasible. Turner

at 696. The Respondent violated that Order and has not provided any forum in which

Mr. Turner can present witnesses, submit evidence
, and argue the feasibility issue.

8 In re McCann is another Petition for a Writ of Mandamus arising out of the same this case. Judge Elliott was also the Respondent in that proceeding which addressed the right of a client (Mr. Turner) to control his legal file.15

Mandamus

/Prohibition is the only adequate remedy

Mandamus is the proper remedy to correct a clear abuse of discretion by a

trial court when the relator has no adequate remedy at law. Walker v. Packer,

827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Because a trial court " has

no ‘discretion’ in determining what the law is or applying the law to the facts,"

a "clear failure by the trial court to analyze or apply the law correctly will constitute

an abuse of discretion." 

### Id. at 840.

Any conjured “ potential review at a later time ” is not an adequate remedy

here. Greenwell v. Court of Appeals for Thirteenth Judicial Dist. , 159 S.W.3d 645,

648

- 49 (Tex. Crim. App. 2005)

. “In some cases, a remedy at law may technically
exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow,
inconvenient, inappropriate or ineffective as to b e deemed inadequate.” Smith v.

Flack , 728 S.W.2d 784, 792 (Tex. Crim. App. 1987 ).

This Court has ordered the Respondent to make a feasibility determination
before proceeding with a retrospective competency trial to ensure that Mr. Turner’s
Due Process rights are protected

. Turner at 696. Respondent must consider all
“pertinent considerations” when making t hat determination. Id. Resp ondent abused

his discretion by failing to follow this Court’s unambiguous mandate.16

The only adequate remedy for Mr. Turner is for this Court to issue the Writs

of Mandamus and Prohibition in order to stay the trial and allow time for a proper
feasibility determinatio n with the necessary Due Process protection s

.

V II . CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator respectfully request s
that this Honorable Court grant this Petition for a Writ of Prohibition directing the
Respondent to postpone the retrospective competency trial and grant this Petition for

Writ of Mandamus and direct Respondent to c onduct a hearing on the f easibility of
a retrospective competency trial

. Respectfully submitted,

____________________________ ROBERT A. MORROW State Bar No. 14542600 24 Waterway Ave., Suite 660 The Woodlands, Texas 77380 Telephone: (281) 379

- 6901 ramorrow15@gmail.com

_____________________________ AMY MARTIN State Bar No. 24041402 202 Travis St., Suite 300 Houston, Texas 77002 Telephone: (713) 320

- 3525 amymartinlaw@gmail.com 

# Robert A. Morrow

Amy Martin17 CERTIFICATION

I certify that I have reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record.

____________________________ ROBERT A. MORROW

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3)
, I certify that

this petition contains 2,810 words (excluding the caption, identity of parties and

counsel, table of contents, index of authorities, signature block, certification,

certificate of service, certificate of compliance, and appendix). This is a computer

generated document created in Microsoft Word using a conventional l4

- point

typeface for all text , e x c e p t f o r f o o t n o t e s
, which are i n 1 2

- point

t y p e f a c e

. In m a k i n g t h i s certificate of compliance, I am relying on the

word count of the computer program used t o prepare this document.

____________________________ 

# Robert A. Morrow Robert A. Morrow18 

# APPENDIX19 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above Petition for Writ of
Mandamus and Petition for Writ of Prohibition was faxed and/or delivered electronically on January 21
, 2015 to:

Respondent

The Honorable Brady Elliott Trial Court Judge 368 th Judicial District Court of Fort Bend County 1422 Eugene Heimann Circle Richmond, Texas 77469 Telephone: 281

- 341

- 8610 Fax: 281

- 341

- 8614

Real Party in Interest

John F. Healy, Jr. Fort Bend County District Attorney

Fred Felcman Assistant Criminal District Attorney 1422 Eugene Heimann Circle Richmond, Texas 77469 Telephone: 281

- 341

- 4460 Fax: 281

- 341

- 4440 Fred.Felcman@fortbendcountytx.gov

____________________________ ROBERT A. MORROW 

# Robert A. Morrow