NO. WR-82,875-01 and WR-82,875-02

IN THE TEXAS COURT OF CRIMINAL APPEALS 

In re STATE OF TEXAS ex rel. JOHN F. HEALEY, JR., District Attorney, 

268TH JUDICIAL DISTRICT, Relator 

 

ON MOTION FOR LEAVE TO FILE PETITION FOR WRITS OF 

MANDAMUS AND/OR PROHIBITION FROM CAUSE NO. 10-DCR-054233 

IN THE 268TH DISTRICT COURT, FORT BEND COUNTY 

Real Party in Interest’s Response to Relator’s Motion for Leave to File 

Petition for Writs of Mandamus and/or Prohibition 

*Death Penalty Case*

Attorneys for Albert James Turner 

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-82,875-01,02

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/17/2015 9:52:07 AM

Accepted 4/17/2015 11:17:39 AM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 4/17/2015 ABEL ACOSTA, CLERK 
2

IDENTITY OF PARTIES AND COUNSEL

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

supplementation. Tex. R. App. P. 52.4(a). 

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL______________________________2

INDEX OF AUTHORITIES __________________________________________3

I. INTRODUCTION _______________________________________________5

II. ARGUMENT ___________________________________________________7

Respondent’s act is not purely ministerial______________________________7

Relator has an adequate remedy at law _______________________________11

 Trial Counsel is not a liar__________________________________________13

III. CONCLUSION________________________________________________16

CERTIFICATION OF COMPETENT EVIDENCE _______________________18

CERTIFICATE OF COMPLIANCE _________________________________18

CERTIFICATE OF SERVICE _______________________________________19
3

INDEX OF AUTHORITIES

CASES

Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981)...................................14

Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011).............................8

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)....................................7

Caballero v. State, 587 S.W.2d 741, 743 (Tex. Crim. App. 1979) .........................10

Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008)..........................................6

Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App. 1980) ...............................10

Gomez v. State, 704 S.W.2d 770, 773 (Tex. Crim. App. 1985) ..............................15

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

49 (Tex. Crim. App. 2005)...................................................................................12

Guy v. State, 160 S.W.3d 606, 617 (Tex. App. 2005).............................................16

In re State ex re. Weeks, 391 S.W.3d 117, 121-22 (Tex. Crim. App. 2013).............6

Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990)........................ 14, 15

Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) .............................12

Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987................................ 12

State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) ......6, 11

State ex rel. Wade v. Mays, 689 S.W.2d 893, 900 (Tex. Crim. App. 1985)..............6

State ex rel. Young v. Sixth Judicial Dist. Court of Appeals At Texarkana, 236 

S.W.3d 207, 210 (Tex. Crim. App. 2007)..............................................................8

Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 

(Tex.Crim.App.1981). ............................................................................................8

Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013)................. passim
4

RULES & STATUTES

Texas Rule of Appellate Procedure 52.4(a)...............................................................2

Texas Code of Criminal Procedure A r t i c l e 44.01(c) ....................................11
5

NO. WR-82,875-01 and WR-82,875-02

IN THE TEXAS COURT OF CRIMINAL APPEALS

In re STATE OF TEXAS ex rel. JOHN F. HEALEY, JR., District Attorney, 

268TH JUDICIAL DISTRICT, Relator

 

REAL PARTY IN INTEREST’S RESPONSE TO REALTOR’S MOTION 

FOR LEAVE TO FILE PETITION FOR

WRITS OF MANDAMUS AND/OR PROHIBITION

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL 

APPEALS:

Now comes Albert James Turner, the real party in interest, by and through his 

undersigned counsel, and files this Response to the State’s Motion for Leave to File 

Petition for Writs of Mandamus and/or Prohibition, and requests that this Court deny 

Relator leave to file and lift the stay of Mr. Turner’s current competency trial. 

I. INTRODUCTION

Relator argues that this Court should grant leave to file because this Court has 

prohibited Respondent from considering Mr. Turner’s present competency when 

evaluating feasibility for a retrospective competency trial and prohibited him from 
6

empaneling a jury for any reason other than retrospective competency. Regardless 

of arguments about jurisdiction, the merits of the underlying cause, and the propriety 

of re-considering this Court’s decision on direct appeal, the issue here is Relator’s 

inability to meet the stringent and well-established requirements for this Court to 

grant leave to file a petition for a writ of mandamus1. 

Mandamus is a drastic remedy, only to be used in extraordinary situations 

when (1) the act sought to be compelled is ministerial and (2) the party seeking relief 

shows that there is no adequate remedy at law. In re State ex re. Weeks, 391 S.W.3d 

117 (Tex. Crim. App. 2013); State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. 

Crim. App. 1994).

“[A]n extraordinary writ will not issue when it is necessary to try and decide 

conflicting claims or collateral questions which require legal controversy for their 

settlement.” State ex rel. Wade v. Mays, 689 S.W.2d 893, 900 (Tex. Crim. App. 

1985). Relator addresses several collateral questions in its Petition, illustrating that 

Mandamus in not appropriate.

 

1 The same requirements apply to writs of prohibition. See Ex parte Alba, 256 S.W.3d 682 (Tex. 

Crim. App. 2008).
7

II. ARGUMENT

On remand, the trial court shall first determine whether it is 

presently feasible to conduct a retrospective competency trial, 

given the passage of time, availability of evidence, and any other 

pertinent considerations.

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

RESPONDENT’S ACTION IS NOT PURELY MINISTERIAL

What to do, not how to do it

Relator is asking this Court to force Respondent to ignore the evidence, 

research, and arguments that he has reviewed and evaluated and “to determine the

feasibility of a retrospective competency trial on factors otherthan Turner’s present

competency.” See Relator’s Petition, p. 23. Relator does not state what “factors” it 

believes should be considered, leaving it to Respondent to properly exercise his 

discretion.

A feasibility determination is required to overcome the acknowledged and 

evident problems with retrospective competency trials. Brandon v. State, 599 

S.W.2d 567, 573 (Tex.Crim.App.1979) (citing Dusky v. United States, 362 U.S. 402, 

(1960)). However, there is nothing ministerial about conducting a feasibility 

determination. Respondent must identify and consider all “pertinent factors” to 

reach a conclusion regarding the Constitutionality of a retrospective competency 

trial based upon the unique facts in Mr. Turner’s case. This situation is analogous to 
8

a trial court’s ministerial duty to rule on a proper motion, but there is not a ministerial 

duty to rule a certain way. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals 

at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007).

Relator must show that it “has a clear right to the relief sought-that is to say, 

when the facts and circumstances dictate but one rational decision under 

unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law 

sources), and clearly controlling legal principles.” Bowen v. Carnes, 343 S.W.3d 

805, 810 (Tex. Crim. App. 2011)(emphasis in original).

This Court’s directive to Respondent was clear: determine if a retrospective 

competency trial is presently feasible. This Court explicitly instructed the 

Respondent on what he must do when making that determination: take into account

(1) how much time has passed, (2) what evidence is available, and (3) “any other 

pertinent considerations.” The law does not prohibit Respondent’s actions—it 

authorizes it. The opinion requires Respondent to account for “pertinent 

considerations,” but does not name or describe them further. Respondent must 

necessarily exercise discretion to follow this Court’s Order.

An act is ministerial “when the law clearly spells out the duty to be performed 

... with such certainty that nothing is left to the exercise of discretion or judgment.” 

Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981).

There is no checklist of factors that a trial court must consider for a feasibility 
9

determination. Relator is unable to provide specifics regarding particular factors to 

be considered. Relator cannot point to any authority that spells out Respondent’s 

duty when determining feasibility other than the requirements in this Court’s 

opinion. 

The only limitation this Court placed upon Respondent was that the 

considerations must be “pertinent.” Respondent has discretion to identify and 

evaluate pertinent considerations in this case. Relator never asserts that identifying

“pertinent considerations” is ministerial. 

No jury was ever called to determine feasibility

Exercising his discretion, after reviewing all of the evidence and listening to 

the arguments of counsel, Respondent identified current competency as a “pertinent 

consideration.”

Further exercising his discretion, Respondent decided that resolution of the 

issue of current competency would be best accomplished with assistance from a jury. 

Current competency is just one “pertinent consideration” Respondent identified. For 

months, Respondent has reviewed briefing by counsel, reports of unsuccessful

psychological evaluations, exhibits submitted by the parties, and other voluminous 

amounts of information in order to make a sound decision regarding the feasibility 

of a retrospective competency trial in this case.

Respondent has never taken any action to empanel a jury, or expressed any 
10

opinion that a jury would be proper, for the purpose of determining feasibility.

Relator argues that Ex parte Watson, 606 S.W.2d 902 (Tex. Crim. App.

1980) is controlling; in fact, it is inapplicable. Watson was given a pre-trial 

competency trial in which a jury found him “sane to enter a plea.” This Court found 

error in that proceeding and remanded the case for a feasibility determination based 

on the facts of that case. On appeal from the retrospective competency trial, despite 

overwhelming evidence to the contrary, Watson argued that a feasibility 

determination had not been made, and if it had, it should have been made by a jury. 

Current competency was never an issue in Watson. And, here, Respondent has never 

suggested that a jury should determine feasibility. 

Relator points out that Respondent does not believe Mr. Turner is incompetent

and that opinion is “plainly spread in the record.” See Relator’s Petition, p. 18. It

is to Respondent’s credit that he seeks a jury’s perspective.

Case-by-case basis

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). A retrospective determination of competency may be made within 

the limits of due process, depending on the facts of the particular case. Id. If the 

application of the law to the facts will vary in every instance, the act is not 

ministerial. 
11

RELATOR HAS AN ADEQUATE REMEDY AT LAW

Article 44.01(c) of the Texas Code of Criminal Procedure provides Relator 

with an adequate remedy: “The state is entitled to appeal a ruling on a question of 

law if the defendant is convicted in the case and appeals the judgment.”

This is not a pre-trial competency trial. This is not a competency trial that is 

being held during trial. This is not a post-conviction pre-appeal competency trial. 

Mr. Turner has been convicted and has appealed the judgment. This Court 

specifically instructed Respondent to forward the record of these proceedings, 

regardless of the outcome, so that the appeal can be reinstated. 

Relator’s impatience is not a proper basis to ignore the requirements for a Writ 

of Mandamus. Mandamus is not meant to provide additional appellate avenues. It 

is only to be used “to correct judicial action that is clearly contrary to well-settled 

law, whether that law is derived from a statute, rule, or opinion of a court.” State ex 

rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (emphasis in 

original). In this case, Relator has not cited to any well-settled law from any source

that is clearly contrary Respondent’s actions. 

Relator agrees

Relator agrees that this Court’s instruction “seems to give Relator an adequate 

remedy.” See Relator’s Petition, p. 8. And Realtor describes the remedy available 

to it under Article 44.01(c). However, Relator believes that utilizing that remedy 
12

would “be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or

ineffective as to be deemed inadequate.” Smith v. Flack, 728 S.W.2d 784, 792

(Tex. Crim. App. 1987). Relator lists many potential witnesses, exhibits, and other 

issues related to the case generally that appear completely irrelevant to a current 

competency trial. 

The inconvenience of calling witnesses and transcribing many hours of jail 

calls is not sufficiently burdensome enough to ignore the adequate remedy at law 

that Relator agrees is available2.

This Court has jurisdiction and can review any issue in this case whether it is 

raised by a party or not. Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 

2012). Relator will have an opportunity to attack any alleged errors upon 

reinstatement. 

 

2 This Court has provided examples of exigent circumstances overcoming a future remedy:

When, for instance, a trial court erroneously removed appointed counsel before 

trial, we found that the defendant had no adequate remedy, for mandamus purposes, 

despite the availability of appeal sometime after trial. Using “the appellate process 

in this situation to correct this particular ill would be too burdensome and would 

only aggravate the harm and most likely would result in a new trial compelling 

relator to again endure a trip through the system.” In the pretrial habeas corpus 

context, we have found that appeal after trial was not an adequate remedy for certain 

double jeopardy claims because protection of the constitutional right of double 

jeopardy requires review before exposure to jeopardy occurs.

Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. 

App. 2005) (citations omitted) (quoting Smith v. Flack, 728 S.W.2d 784, 792 

(Tex.Crim.App.1987)).
13

Relator has failed to show that (1) Respondent’s act is purely ministerial and 

(2) that it has no adequate remedy at law. Mandamus relief is not proper.

TRIAL COUNSEL IS NOT A LIAR

Improper forum

Relator argues that this Court should reconsider its decision to remand this 

case. Although it is understandable that Relator would seek this relief, it is improper 

to do so here. In a Mandamus proceeding the only issue is Relator’s inability to 

show that Respondent’s actions are purely ministerial and that it does not have an 

adequate remedy at law. A blatantly irrelevant argument confuses the issues and 

wastes the Court and the parties’ time.

“uninvited and unsubstantiated”

In its attempt to re-litigate finalized issues, Relator personally and 

professionally attacks Mr. Turner’s trial counsel Pat McCann:

Turner’s attorney,PatMcCann iswell known to thisCourt,the trial court,

and the public as a zealous attorney who has kept his clients alive on

death row for many years through his litigious efforts. The trial court 

observed counsel’s interactions with Turner and determined thatTurner

did not like his counsel, not that Turner was incompetent, and the trial

court could easilyhave seen through trial counsel’sstrategy to save Mr.

Turner’s life by having him found incompetent in concert with Dr.

Axelrad’s report. See, Commonwealth v. Blakeney, No. 653 CAP, 2014

WL7392249,*29 (Pa. Dec. 29, 2014) (Castille, C.J., concurring)

(“As I explained in Commonwealth v. Bomar, 104 A.3d 1179 (Pa.

2014), retrospective competency claims are particularly ripe for abuse

by anti-death penalty advocacy groups like the [Federal Community
14

Defender’s Office], like-minded experts in their effective employ,

and capital defendants themselves, who obviously have nothing to lose

by abetting a fraudulent claim”).

See Relator’s Petition (footnotes omitted), p. 20

Relator’s argument demonstrates contempt for trial counsel and the legal 

proceedings in this case. Unashamedly, Relator disparages Mr. McCann as an antideath penalty activist who will do anything, including gaming the legal system and 

strategize to have a competent client found incompetent “in concert with Dr. 

Axelrad’s report.”

Texas courts have a history of preserving the integrity of the legal profession 

by explicitly condemning and often reversing convictions based upon comments of 

the type that Relator makes in its Petition. This Court has reversed and remanded 

when a prosecutor commented that defense counsel “represents the criminal. His 

duty is to see that his client gets off even if it means putting on witnesses who are 

lying.” Bell v. State, 614 S.W.2d 122, 123 (Tex. Crim. App. 1981).

Mr. McCann has not represented Mr. Turner since the conviction and death 

sentence. Relator is not responding to any legal argument that has been put forth in 

this proceeding. When made in closing arguments, these comments are the type of 

“uninvited and unsubstantiated accusation of improper conduct directed at a 

defendant's attorney” for which this Court has a “special concern.” Orona v. State, 

791 S.W.2d 125, 128 (Tex. Crim. App. 1990).
15

 In Gomez v. State, this Court described an improper argument by a 

prosecutor:

In the instant case, the State, in its second improper argument, referred 

to appellant's attorney by name, made a specific uninvited and 

unsubstantiated accusation, and linked that accusation to the evidence 

raised in the case. Further, appellant objected, but the trial court 

overruled the objection. Under these circumstances, we do not believe 

that this second argument was harmless. 

Gomez v. State, 704 S.W.2d 770, 773 (Tex. Crim. App. 1985).

Here, Relator names Mr. McCann specifically and intimates that his 

representation of clients is for publicity and in pursuit of a social cause. This is the 

equivalent of a closing argument in which a prosecutor says that defense attorneys 

“know how to get people off the charges they are charged with.” Orona v. State, 

791 S.W.2d 125, 127-28 (Tex. Crim. App. 1990).

Relator accuses Mr. McCann of fraudulently claiming that a client was 

incompetent and by swearing to facts supporting that claim in an affidavit.3 This 

accusation is directly followed by a comment about activists, hired experts, and 

death row inmates that make fraudulent retrospective competency claims4.

 

3 Relator suggests that Respondent “could easily have seen through trial counsel’s strategy.” If 

this is true, Relator is suggesting that Respondent allowed Mr. McCann to perpetrate the fraud.

4 Given Relator’s attempt at parallel argument, it appears that Dr. Axelrad is being equated to one 

of the “like-minded experts in their effective employ” that also abuse the system. Dr. Axelrad was 

never the defense’s expert at trial.
16

Relator’s character assassination of trial counsel is an attempt to somehow

strengthen its legal position with an argument that “refers to defense counsel 

personally . . . and explicitly impugns defense counsel's character. Guy v. State, 160 

S.W.3d 606, 617 (Tex. App. 2005).

These cases, for obvious reasons, deal with jury argument. However, attacks 

in public written pleadings filed with this Court are at least, if not more, offensive. 

In this case, Relator is not in front of an audience subject to being prejudiced and 

inflamed like a jury may be. Instead, this Court is in a position to thoughtfully

consider Relator’s tactic when evaluating the credibility of its pleadings and to

address Relator’s actions as it sees fit.

III. CONCLUSION

This Court was very straightforward when it instructed Respondent to 

determine present feasibility of a retrospective competency trial. The instructions 

included a mandate of what he must consider. This Court did not place any 

limitations on Respondent’s required “case-by-case” evaluation. It is impossible to 

consider this feasibility act to be ministerial. The facts and procedural posture of 

this case are unique and Relator does not have a “clear right” to a particularized

process with specifically chosen factors. And, Relator has a straightforward 

adequate remedy at law under the Code of Criminal Procedure.
17

WHEREFORE, PREMISES CONSIDERED, the real party in interest

respectfully requests that this Honorable Court deny Relator’s Motion for Leave to 

File Petition for Writs of Mandamus and/or Prohibition and lift the stay of his current 

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

/s/ Robert A. Morrow 

Morrow 

/s/ Amy Martin 
18

CERTIFICATE OF COMPETENT EVIDENCE

I certify that I have reviewed the petition and concluded that every factual 

statement in the petition is supported by competent evidence included in the 

appendix or record.

____________________________ 

ROBERT A. MORROW 

 

CERTIFICATE OF COMPLIANCE

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

this petition contains 3,248 words i n i t s e n t i r e t y . This is a computergenerated 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 to prepare this document.

____________________________ 

Robert A. Morrow

/s/ Robert A. Morrow 

Morrow 

/s/ Robert A. Morrow 

Morrow 
19

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above Response to the 

State’s Motion for Leave to File Petition for Writs of Mandamus and/or Prohibition 

was delivered electronically on April 17, 2015 to:

1. Relator

The State of Texas

Represented by:

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

Fred Felcman, Assistant District Attorney

Fred.Felcman@fortbendcountytx.gov

State Bar No. 06881500

Gail Kikawa McConnell, Assistant District Attorney

Gail.McConnell@fortbendcountytx.gov

State Bar No. 11395400

301 Jackson St.

Richmond, Texas 77469

Telephone: 281-341-4460

Fax: 281-341-4440

2. Respondent

The Honorable Brady Elliott

Trial Court Judge

368th Judicial District Court of Fort Bend County, Texas 

1422 Eugene Heimann Circle

Richmond, Texas 77469

____________________________ 

ROBERT A. MORROW 

/s/ Robert A. Morrow 

Morrow