## IN THE COURT OF CRIMINA L APP EALS OF TEX AS

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A L B E R T J A M E S T U R N E R , A p p e l l a n t

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I N T H E 2 6 8 T H D I S T R I C T C O U R T F O R T B E N D C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h K E A S L E R , H E R V E Y , A L C A L A , R IC H A R D S O N , Y E A R Y a n d W A L K E R . , J J . , j o i n e d . K E E L . , J . , d i s s e n t e d . N E W E L L , J . , d i d n o t p a r t i c i p a t e . Appellant was convicted of capital murder for killing his wife and mother-in-la w during the

same cr i minal transac tion. The jury answe red the specia l issues in such a manner that Appellant 1

T E X
. P E N A L C O D E §19.03(a) (7)( A); T E X
. C O D E C R I M
. P R O C
. art. 37.071. Unless otherwise 1 indicated, a ll future re fer ence s to articles re fer to the Texas Code of Criminal Procedure

.TURNER – 2

was sentenc ed to death. Direc t appea l to this Court is automatic. On o ri gi n al submissi on, we 2 3

rema nded this case for a retrospe ctive competenc y hear ing. We later order ed supplemental briefing

on the eff ect, if any , of the Su preme Court’s rec ent decision in McCoy v. Louisi ana . We now 4
conclude that Appellant was competent t o stand trial, but we also conclude that defe nse counsel

conce ded Appellant’s gu i l t of murder ag ainst Appellant’s wishes in violation of McCoy

. Consequently , we reve rse the trial court’s judgme nt of conviction and rema nd the case for a new trial. I. Background The day afte r C hris t m as of 2009, Appellant entered the home of his in-laws and killed his wife, Keitha Turner , and his mother-in-la w, Be tty J o Fr ank, by cut t i n g t h eir throats. Four of Appellant’s y oung ch ildren wer e at the house at the time, and two of them, K.T. and J .T., wer e
ey ewitnesses to the murders. Twelve -y ear -old K.T. called 9-1-1 and told the d i spatche r that her
g randmother was dead and her mother was dy ing and neede d help. K.T. identified her fathe r, Appellant, as the killer.
K.T.: Help. He lp. Help! 911 opera tor: Hello? . . . Ma’a m what’s g oing on?
K.T.: My Dad c ame in our house and, and he , he choke d my mom and she’s bleeding and there ’s blood ever y wher e! Ple as e! Come!

. . .
Art. 37.071, § 2(g ). 2 Art. 37.071, § 2(h)

. 3 138 S.Ct . 1500 (2018). 4TURNER – 3

K.T.: Please he lp! My Gra ndmas dea d. She’s dea d. 911 opera tor: Who is dead?
K.T.: My Gra ndma Gra mmy . He killed her

too. 911 opera tor: I can’ t understand what y ou’re say ing.
K.T.: My Gra ndma is dead!

. . . 911 opera tor: What happened to he r?
K.T.: He killed her ! 911 opera tor: Who did t hat?
K.T.: My dad! 911 opera tor: What did he do to her?
K.T.: He stabbe d her w ith something and her neck is cut open and

she’s de ad!

. . . Both of them

. . . M y m om and my g randma

. . . We are all h er e and my Mom, [Unint elligible—sc rea ms] , my mom i s [Unint elligible—sc rea

ms]

. Appellant fled, and a nationwide manhunt ensued. He was appre hended in North Carolina

two and a half months later, using an alias, afte r his photo appea red on the Reg is and Kelly television show during a promotion of the 1,000th episode of “A merica ’s Most Wanted.” The testimony of K.T. and J .T. was taken via deposition befor e trial at the reque st of defe nse

co u n s el. K.T. testified to a history of domestic hostili ty betwee n her pare nts. K.T. rec alled t h e events on the nig ht her mother a nd g randmother

wer e killed:TURNER – 4

Q: [By defe nse counsel]. Okay

. J ust tell me what y ou hear d and what y ou did.
A: [K.T.]

. I hear d my mom scre am and I kind of hesitated at first but then I g ot out of bed an d o n my way to—to wher e my mom was sleeping and my g randma ’s room and I opened the door and I started scre aming for them and my g randma came out and she g rabbe d the phone and came out and she stood on—on my left side and then my g ra n d p a go t up and was standing on my rig ht side and that’s rig ht wheneve r my dad ca me ar ound the cor

ner.

. . . A: He c ame out of my mom’s room where my

mom was sleeping

.

. . . Q: So y ou saw y our dad?
A: Yes.
K.T. said that she hear d Appellant telling her g randma and g randpa to “shut up,” befor e she watche d him run down the stairs and he ard him lea ve throug h the door. Q: Okay . And then wha t did y ou see?
A: And th en I

—I just went to—where my mom was. I was in there and she was—she was bleeding in her neck, too, and holding it; and my g randma g ot up and she broug ht the phone to me and my —my mom said to call 9-1-1 and my g randma walked back t o wher e she was and so I called 9-1-1 and I was just going back a

nd forth betwe en my

g randma and my mom.

. . . A: I was just still g oing back from my mom to my g randma ; and then whene ver I went to my

g randma , she was lay ing on the g round; and I picked he r bac k up; and she wasn’t b re at hing; and so I chec ked her hear tbeat; and her heart wasn’t beating ; and so th en I went into my g randma ’s—my mom’s room ag ain with my sist ers, but my mom told my sisters to g o out of the room beca use she didn’t wa

nt them seeing

—want them to see her like tha t. J .T. said that he saw Appellant come out of his mother’s room with a knife in his hand and that he saw blood coming out of his mother’s mouth.TURNER – 5 II. Com petency Appellant raised t he is sue of his competenc y to stand trial both at trial and on appeal. We

rema nded the case to the trial court, which held a ret ro s p ec t ive competenc y hear ing at which Appellant was found to have been comp et en t at the time of his trial. Appellant has now filed a supplemental brief. I n light of Appellant’s claims, it is nece ssary to rec ount the evidence relating to his competency

. A. Evidence Relating to Com petency 1. Interac tions w ith Coun sel Appellant’s rela tionships with all members of his defe nse team wer e contentious throug hout the proce eding s. This difficulty was cause d, at least in part, by the fa ct t h at Ap p ell ant and his 5 attorney s held differ ent views about what defe nsive theory to pursue at trial. Appellant’s attorney s decide d to depose the children and then ag ree for the State to use the rec orded deposition testimony

at trial. I n their view, t h i s ap p ro ac h would be less damag ing to Appellant than if the children testified live in front of the jury about the murders they had witnessed. After Appellant was told that his children would be deposed, communication bet wee n Appellant and his defe nse team turned
perma nently sour. 6

R al ph Gonzalez, Appellant’s first attorney , withdrew from this case afte r Appella n t 5 phy sically threa tened him. The trial court then appointed Ty rone Moncriff

e and Patrick McCann to repr esent Appellant at trial, but the ir rela tionship wit h Appellant was antag onistic. Mr. Moncriff e testified at the retrospe ctive competenc y hear ing that, during one interview, Appellant acc used him of poisoning Appellant’s coff ee. After Appellant was convicted, the trial court appointed the Offic e of C apital W rits (OCW) to repr esent him in habea s proceeding s. Appellant was distrustful of t he OCW and objected to its repr esenta tion beca use it was a “state ag ency .” The trial court g rante d the OCW’s request to withdraw a s counsel in J anuar y of 2012. At Appellant’s motion for ne w trial hea ring , McCann testified that “[Appellant] insisted 6 (continued...)TURNER – 6

I n May of 2010, Appe llant’s first trial attorney , Ralph Gonzalez, moved to have Appe llant evalua ted for competenc y to stand trial

. Ov er the next y ear , Appellant was examined by sever al phy sicians. T h ey all thought that Appellant exhibi ted signs of delusion, a g enuine antag onism towards his defe nse team, and some signs indicating at least a possibili ty of para noid thinking. None of them stated conclusively that, based on his mental capa city to rationally understand the nature of the proc eeding s ag ainst him, Appellant was incompete nt to stand trial.
2. P hysician Evalu ations
Dr. Kar en Gollaher , a psy cholog ist, examined Appellant for competenc y to stand trial. I n her
repor t, she stated that Appellant wa s g ener ally cooper ative but that he would not discuss any of his actions on the night of the murders. She noted that Appellant “re ported a belief that his wife had been having an aff

air for many y ear s with the May or of Kendleton, Texas

. . . [and] that this May or would
repe atedly ‘appr oach’ him to say hello and he sometimes felt ‘stalked.’ ” During t he evalua tion, Appellant denied experiencing any suicidal thoughts, homicidal thoughts, hallucinations, delusional thinking, beliefs about thought insertion, or a belief that someone could rea d his mind. Dr. Gollaher did not diag nose Appellant with any particula r mental disorder. She ultima t ely deter mined that, althoug h Appellant “made sever al statements that raise the possibili t y o f p aranoid thinking,” his condition “[did] not undermine his ability to participate in the court proc edure s.”
Dr. David Axelrad, a psy chiatrist, evalua ted Appellant and repor ted t h at h e “[ did] not demonstrate signific ant problems in his level of consciousness or in his orientat i o n . ” Dr. Axelrad stated that Appellant “wa s cooper ative during the psy chiatric interview conce rning his past history ,

(...continued) that, somehow, I

was c oerc ing the children of f of c amer a.”TURNER – 7

but he did not w ish to discuss any information conce rning the commission of the alleg ed off ense.”
He also noted that Appellant appea red to have “mild para

noid functioning ” that might be contributing

t o t h e problems he was experiencing with his attorney

. Dr. Axelrad ultimately concluded t h at Appellant was “pre sently mentally competent to st an d t ri al

. . . and competent to enter into plea
neg otiations conce rning his alleg ed offense” in the event that he and his attorney could develop an eff ective w orking rela tionship.
Dr. Shawanda Wil liams-Ander son, a neuropsy cholog ist, evalua ted Appellant approximately six wee ks befor e trial. Dr. Wil liams-Ander son “administere d the MM S E , wh i ch is a 30-point

assessment tool that measure s orientation. [Appellant] score d twen t y -e i gh t out of thirty possible points, which is indicative of intact mental fac iliti es.” Dr. Wil liams-Ander son’s evalua tion focuse d predominate ly on Appellant’s disruptive behavior and his ability to cooper ate with his defe nse team:
Be cause of the seriousness of [Appellant’s] char g es, his unwillingness to participa te in his defe nse, and his extreme distrust of ever y member of his team, his competenc y to stand trial is questionable. His actions are direc tly impeding his defe nse team. He is making dire decisions that are detrimental to his defe nse and has no understanding of doing so. Thus, his mental capa city to sta nd trial is not the source of contention, but his ability to participa te in the leg al proce ss was closely evalua ted. [Appellant’s] actions would dee m him incompetent to stand trial.
I n May of 2011, Appellant’s defe nse team raised conce rns that Appellant’s mental state had deter iorated since these evalua tions, and counsel moved for a formal competenc y hear ing. The trial

court order ed Dr. Connie Almeida, a licensed clinical psy cholog ist and Direc tor of For t Be nd County
Be haviora l Hea lth Servi ce s , to evalua te Appellant to assess whether his level of competenc y had chang ed. Dr. Almeida was unable to rea ch a co n cl u s i o n about whether Appellant’s failure to
cooper ate with counsel rende red him incompetent to stand trial, but she stated that there had been “no signific ant chang es in [Appellant’s] emotional or cog nitive functio n i n g s i n ce the time of theseTURNER – 8

evalua tions [by Drs. Gollaher and Axelrad] that would adver sely impact his competenc y to stand trial

at the prese nt time.” The trial court proce eded to trial without holding a formal competenc y hear ing.
3. Trial By the time of trial, Appellant’s rela tionship with his de fense team had turned acr imonious,
in part because his attorney s pursued a trial strateg y

that discounted Appellant’s explanation of t he offe nse. Def

ense counsel contende d that Appellant should admit his g uilt and co n centrate on obtaining a life sentenc e instead of the death penalty

. I n opening statements, his attorney s descr ibed the slay ing of Keitha Turner as a crime of passion but argued that Be tty J o Fr ank’s death was

acc idental. Def

ense counsel arg ued that the fac ts did not leg all y am o u nt to capital murder, that Appellant was in a state of delusional denial about the crime he had committed, a nd that the proper verdic t was the lesser- included offe nse of murder. I f succe ssful, this defe nse would have avoided the assessment of the death pe nalty

. Appellant, howeve r, maintained that he was innocent and d en i ed any involvement in the murders. Appellant said he believed that the May or of Ke n dleton, members of the May or’s
entoura g e, the Chief of Police, the trial judge , the State prosec utors, and even his own attorney s wer e all participa

nts in a conspirac y

to secure his conviction. Shortly befor e trial, Appellant intimated that he would take the stand. Ag ainst his attorney s’ advice , Appellant testified on his own behalf

. He testified that he did not kill his wife and mother-inlaw and that his daug hter, K.T., misidentified him as the killer and was coer ced into g iving deposition testimony ag ainst him. Bef

ore a nd during Appellant’s cross-e x amination, defe nse counse l reurg ed motions t o hold a forma l competenc y hear ing. T he motions were denied.TURNER – 9 4. Rem and On orig inal submissi on, fourtee n of Appellant’s twenty -four points of err or involved claims that the trial court reve rsibly er re d , o r o t herw ise misapplied the law, by failing to conduct competenc y hear ings at various st ag es of the proceeding in violation of Chapter 46B of the Texas Code of Criminal Procedur e and the constitutional rig ht to due proce ss. We deter mined that the trial

court did err on this issue. We sustained his ninth point of err or, abate d the appea l, and rema nded 7 8
the ca se to the trial cour

t to conduct a r etrospec tive competenc y trial if one wa s fea sible. 9
On rema nd, Appellant’s counsel filed pleading s arg uing that a retrospe ctive competenc y trial

was not fea sible beca

use Appe llant was not prese ntly competent to pa

rticipate in suc h a trial. The
State maintained that Appellant’s prese nt competenc y was irrele vant. I t also arg ued that a retrospe ctive competenc y trial was fea sible beca use Appellant’s trial attorney s and the prosec utors

wer e all available to tes t i fy , the quality and the quantity of evidenc e available to revie w was substantial, and an insig nificant a mount of time had passed since the trial. During a hear ing befor e the trial court, Appellant’s counsel reque sted a formal h ea ri n g to deter mine Appellant’s prese nt competenc y befor e proce eding to a retrospe ctive competenc y trial. 1 0

Turner v

. State , 422 S.W .3d 676, 696 (Tex. Crim. App. 2013) (“[T]his case prese nts one 7 of the rela tively rar e instances in which there is at least some evidenc e from which it may rationally be inferr ed not only 1) that the defe ndant suffe rs some deg ree of debilitating mental illness, and that 2) he obstinately ref

uses t o cooper ate with counsel to his own apparent de triment, but also that 3) his mental illness is what fuels his obstinacy .”) ( emphasis in orig inal). Appellant’s point of err or nine: “This Court should abate the appea l and rema nd to the trial 8 court for a dete rmination of Appellant’ s competenc y during trial.” Turner , 422 S.W .3d at 696-97. 9 This reque st was based upon the holding in Gree ne v. State , 264 S.W .3d 2 7 1 (T ex . 1 0 (continued...)TURNER – 10

The trial court said that it had “no doubt” that Appellant was competent at trial, but in an abundanc e of caution, the court order ed that Appellant be examined for curr ent competenc y by both an expert for the State a

nd an expert for

the def ense. The two experts wer e appointed, but Appellant ref used to leave his cell, and they wer e unable

to complete their evalua tions. The trial court then issued a written order in which it deter mined that

a re trospective c ompetency trial was f

easible a nd set a da te for tha t trial. 1 1
At a later hear ing, defe nse counsel arg ued that the retrospe ctive hear ing was infea sible—not beca use of the unavailability of witnesses or evidenc e, but beca use Appellant could not participa te due to his curr ent incompetenc y : Ou r re q uest is to have a hear ing to deter mine if it’s fea sible or not

. . . W e we re never gi v en t h e opportunity to have a hear ing to arg ue fea sibili ty , also known as [Appellant’s] curr ent competenc y . We wer e never g iven the opport u nity to bring forth ex hibits and bring forth witnesses t o arg ue: No, it’s not fea sible beca use he’ s incompetent.

. . . He has to be restore d to competenc y so we can have the retrospe cti ve competenc y trial that the Court of Criminal Appea ls demanded. The State took the position that Appellant’s cur re n t co m p et ency was not require d, and that the retrospe ctive hear ing was indeed fea sible for all the rea sons that ty pically g o into that deter

mination:
All we’ re here for today is w hether it’s f easible to ha

ve a retrospe ctive competenc y hear ing, not what he’s like today or tomorrow or 2 0 y ea rs fr o m now. And the
(...continued) App—San Antonio 2008, pet. ref ’d), in which the court of appea ls found it unfea sibl e to hold a retrospe ctive competenc y trial beca use Appellant was i ncompetent and was “expected to rema in incompetent for

the indefinite futur e.” Id . at 272. This was a signe d copy of the State’s proposed order which it had submitt ed on April 28, 1 1 2014, prior to the initial scheduling hear ing.TURNER – 11

g rounds for that are quite simple. First of all, the passag e of time, althoug h that’s not a critica l thing ; but it has not been a g rea t pa ssag e of time. The State of Texas tr ies case s dealing with mental states that are seven or eig ht y ear s old. Second, the quality and quantity of the evidenc e. The evidenc e they would have at t h e t i m e o f the competenc y hear ing two and a half y ear s ag o is the very same ones they ’ve g ot now: Pat Mc Cann, Ty

rone Moncriff

e. They also have acc ess to a ny other doctor they ’ve g ot at that time. There is nothing, not one bit of evidenc e they do not have now that they didn’t have ba ck then. I

n fac t, she said they

had more

. . .

. . . The log ic is he has to be competent to ha ve an incompetenc y hear ing is a n Alice in Wonderland ty

pe log ic. We would never try any body then. As to the fea sibili ty

of the re trospective he aring , the trial cour t said:
S o we ’r e ri g ht back to wher e we wer e on the orig inal competenc y hear ing or competenc y situation at the time of the trial which we’ re g oing to have the fea sibili ty on is he still won’t talk to any profe ssionals, so I ’m not—we’r e g oing in a circ le. I want to g ive [Appellant] all his rig hts, but there ’s nothing that at this point that would chang e—that y ou’ve shown me that would chang e my position on a decision I ’ve alre ady made, that’ s it’s feasible to ha ve the r etrospec tive competenc y hear ing. This hear ing conclude d without the trial court making any chang es to its finding that a retrospe ctive competenc y

trial was f

easible.
Neve rtheless, when both parties late r announc ed “r eady ” for the retrospective competenc y trial, the trial court said that, while it believed the hear ing was fea sible, it had conclude d that the law require d Appellant to be competent in order to proce ed. Over the S tate’s objection that there w as

no statutory or leg al basis for the trial court to h o l d a j u ry t ri al on the matter, the court order ed a hear ing to de termine Appe llant’s prese nt competenc y . The State challeng ed this decision via writs of mandamus and prohibition filed in this Court.
We stay ed the proce eding s, filed and s et t h e State’s petitions of mandamus and prohibition, and order ed the pa

rties—and invited the tria l court—to brief the following issues:TURNER – 12

1. M u s t a defe ndant be prese ntly competent in ord er fo r a re t ro s p ec t i v e competenc y

trial to occur ?
2. I f so, does the trial court have the authority to require a jury to deter mine the issue of pre sent compete ncy ? The trial c ourt responde d that it had deter mined that a retrospec tive competenc y trial was feasible but that it had order ed that a jury deter mine Appellant’s prese nt competenc y befor e proce eding with the retrospe ctive competenc y trial. The trial court maintained that it had authority to have Appellant’s prese nt competenc y resolved by a jury

. Ultimately , we denied relief on the State’s writs of prohibition and mandamus, but on the same day we lifted the stay and order ed the trial court to 1 2
proce ed with a r etrospec tive hear ing. 1 3
5. The Retr ospective C om petency Trial
A retrospe ctive competenc y trial was later commence d, but it ended in a mistrial beca use a witness was improperly asked about Appellant’s conviction for this offe nse. Another retrospe ctive 1 4 competenc y

trial was he ld, at which Appe llant chose not to be pre sent in the courtr oom. The trial court ordere d the proceeding to be televised live to Appellant in his jail cell a n d p ri v at e means of

In re State of Texas ex rel. Healey , Nos. WR –82,875–01 & WR

–82,875–02, 2017 Tex. 1 2 Crim. App. Unpub. L EXI S 192, 2017 WL 915532 (Tex. Crim. App. Marc h 8, 2017) (not desig nated for publica tion).

T u r n er v. State , No. AP–76,580, 2017 Tex. Crim. App. Unpub. L EXI S 196, 2017 WL 1 3 2571546 * 6 (Tex. Crim. App. March 8, 2017) (not desig nated f or publication) ( “Consequently , it is no longe r nece ssary to deter mine whether Appellant is prese ntly competent befor e underta king a retrospe ctive competenc y trial.”); Id

. at *6–7 (c iting Ex parte W atson , 606 S.W .2d 902, 906 (Tex. Crim. App. 1980) (re

jecting the applicant’ s arg ument that the trial court should have obtained a “jury finding as t o the feasibility of hol ding the re t ro s p ec t i v e competence hear ing,” noting that the t rial court’s setting and taking other actions in prepa ration for the retrospe cti v e co mpetency hear ing showed that “ the trial cour t made the ne cessa

ry deter mination” of fe asibility )). The prosecutor asked Appellant’s trial attorney , Pat McCann: “That testimony , that was 1 4 the deposition y ou took from them, I was a ble to use it to convict the def endant? ”TURNER – 13

communication to be ava ilable to Appellant and c ounsel. The ju ry h ea rd testimony from Appellant’s trial attorney s, Ty rone Moncriff

e and Pat McCann, and the examining phy sicians, Drs. David Axelrad and Kar en Gollaher

. J ill Stott s, one of the prosec utors at Appellant’ s trial, also testified. I n 2010, Dr. Ax elra d repor ted t o the trial cour

t that Appellant was competent to stand trial. At the retro s p ec t i v e competency trial, howeve r, he testified that Appellant had suffe red from a mental disorder that disabled him from eff ectively communicating with his attorney s. He said that h e ar rived at this new conclusion based on information that was not a vailable to him at the time of trial: Dr. Axelrad: [ Ap p el l ant] had the jealous ty pe of delusional d i s o rd er an d t h e perse cutory ty

pe of delusional disorder.

. . . The perse cutory ty pe of delusion disorder is the ty pe of delusional disorder that g ener ally , in mentally disordere d offe nders, i f they have that disorder, that—that does cre ate signific ant issues involving competenc y , particula rly the leg of competenc y to stand trial that rela tes to being able to rationally cooper ate with y our counse l in prepar ation of y our def ense.

. . . Ms. Martin: Kn o wing what y ou know now, do y ou bel i ev e [ Ap p el l an t ] wa s

competent? Dr. Axelrad: No. What I know now, wh at I have review ed, I ’m testify ing to this

Court rig ht now [

. . . ] that this d ef en d an t at the time was incompetent to stand trial. And if—and I would have provided t hat information to him with the information I have available to me now. The State counter ed Appellant’s attempts to establish incompetenc y by showing that he was able to eff

ectively consult with counsel. The State supported this arg ument, in part, by offe ring evidenc e of Appellant’s disag ree ment with his at t o rney s on the issue of whether to depose his children. The following exchang e occur red betwee n the State and Dr. Axelrad during crossexamination at the retrospe ctive compe tency trial:TURNER – 14

The State: Did defe nse counsel say : “I consulted with the defe ndant about these

matters? ” Do y

ou reme mber that? Dr. Axelrad: Yes, I

reme mber him testify ing to that, y es. The State: So they

consulted with the def

endant a bout taking the depositions? Ms. Martin: Objection; re levanc e. Trial cour t: Over

ruled. Dr. Axelrad: Yes, I think that y ou can safe ly conclude that both at t o rney s in the

matter made their statements with the trial court that—that they wer e consulting w ith—with their client. The State: Did y ou see wher e they said they consulted with him about taking the

deposition and th at he ag ree d at one time to take the deposition but now he’ s chang ed his mind? Dr. Axelrad: Yes, that is true. Apar t from Dr. Axelrad’s testimony , most of the evidenc e prese nted to establish Appellant’s incompetenc y consisted of defe nse counsel’s testimony about how difficult it was to re p r e s e nt him. 1 5 Ty rone Moncriff

e stated that, during one interview, Appellant thought his a ttorney s wer e try ing to poison his coff

ee. When asked what eff

ect a defe ndant’s decision to testify might have on the case , Moncriff e responded, “I t depends on the stra teg y , but most times, it destroy s y our whole strateg y ,

There is no evidenc e that Ap p el l ant was ever treated for any psy chiatric disorder before 1 5 the murders, and the State has arg ued that, t h ro u ghout all of the competenc y proce eding s and the retrospe ctive competenc y trial, Appellant never prese nted any psy ch iatric or medical evidenc e of mental illness or mental injury

. As a veter an of the first Gulf War, Appellant evidently suffe red from two concussions, but those injuries wer e not linked to a ny kind of lasting mental defe ct or illness. A brain scan taken a wee k befor e trial did not reve al any detec tab l e ab n ormalities. After the punishment phase of trial, Appellant’s counsel withdrew a motion rela ted to mental-he alth evidenc e in the jury char g e beca

use no such evidenc e was prese nted. Appellant’s I .Q. is in the normal rang e. Appellant never prese nted any school rec ord, s er v i ce rec ord, or employ ment rec ord sug g esting a diag nosis of any mental illness or mental impediment. He never presente d any family member or friend w ho had obser

ved in him a mental illness or mental de fec t.TURNER – 15

destroy s the ca se itself.” Pat McCa nn also testified: Ms. Martin: No w i n t h i s ca s e, h o w d o es [ Ap p el l an t ’s b eh av i o r] s t ri k e y o u

differ ent[ly ] t han just an obstinate client who’ s ly ing to y ou?
Pat McCann: This was consistent over the course of sever al months. There was no

indication of humor. There was no tale. There was nothing to indicate that he had any

thing other than an absolute belief that I was part of some, for lack of a better term, whit e fo l k conspirac y to sit there and g et, y ou know—do him harm. Ms. Martin: How did that impact y our ability to repre sent him?
Pat McCann: I t made it impossib l e. Yo u co u l d n o t h av e a discussion with him

about what the evidenc e showed beca use he was in delusional denial.
On cr oss-examination, the following e x chang e occ urre d: The State: [W ]e’re not g oing to be talking about the fac ts of this particula r case . We’re not allowed to. All the j u ry ’s g oing to decide is did he have the ability to consult with y ou, okay ?
Pat McCann: And he did not. The State: That’s y our opinion.
Pat McCann: Ba sed on eig ht wee ks of sitti ng next to him and knowing cra zy when

I sit nex t to it. The State called Dr. Gollaher , who had previously repor ted to the trial court that Appellant

was competent to stand trial. She said that, althoug h “any thing is alway s possible,” she “didn’t see
any information to support” an infere nce that Appellant had “per secutory delusional disorder” or any other menta l illness that rende red him incompe tent to sta nd trial. Dr. Gollahe r testified be fore the jury about her interac tions with Appellant during the months before trial:
Dr. Gollaher : Both times I saw [Appellant] , he was very cooper ative. He e ng ag ed

in conver sation with me. Ag ain, was—wa s g uarde d, as he should be, about Fifth Amendment rig ht issues but was able to interac t with me, was easy to develop rappo rt wi t h, and so that made the evalua tionTURNER – 16
easy . He did not eng ag e in any behavior that g ave me conce rn about a mood disorder

like signific ant depr ession—

. . . The State: What about delusions or hallucinations? Was he suffe ring from any

of those fr om what y ou could tell? Dr. Gollahe r: He did n o t en gage i n an y t h i n g t h at m ad e m e t h i n k h e h ad hallucinations, and cer

tainly he denied that. We talked about specific examples or ty

pes of delusions, and he denied all of those. He did speak about some thinking t h at co u l d be seen as para noid.

. . . He discussed conce rns about his food, that people may b e p u tting—I think it was fing erna ils or mag g ots into his food.

. . . So those could be see n as par anoid; they could not be. The y

could be a

rea lity

.

. . . The State: Did he eve r use the w ord “poisoning , with poison? ” Dr. Gollahe r: No, he did not.
Dr. Gollaher ’s testimony also supported the State’s position that Appellant was not incompetent to stand trial just beca

use he ha d a diffic ult relationship with his attorney s: The State: And based on y our overa ll interac tions with [Appellant] , as well as all

these other items, did y ou beli ev e t h at his statements about his defe nse tea m were logic al or illog ical? Dr. Gollahe r: They wer e logic al. They seeme d like ratio n al s t at ements som eone

might make

. The State:: And what we re some of those statements? Dr. Gollahe r: Hi s bigg est conce rn appea red to be, from what I rea d, h e wa s n o t happy with his repr esenta tion. He was not happy with—[ h]e wanted to be able to explain his side of the story ; he wanted to be able to testify ; he want ed cer

tain evidenc e that he thought was rea lly important to be enter ed. And he felt his attorney —attorney s wer e not listening to him and following throug h with that.

. . .TURNER – 17

The State: Did [Appellant] ever make any statements throug h the rec ord s t h at

y ou wer e looking at that he believed that his defe n s e t ea m was working for the State? Dr. Gollahe r: I believe he said that on at lea st one occ asion. The State: Ba sed on y our training and experience and working with people whe n

they ’r e ch ar g ed with crimes, is that a common belief that’s share d when someone has a c ourt-appointed attorney ? Dr. Gollahe r: Yes. The State succ essfully

arg ued that Appellant wa s able to ef fec tively consult with counsel. After a two-day retrospe ctive competenc y trial, the jury returne d a unanimous verdic t that Appellant

was not incompetent to sta nd trial at any point in time be tween April 15, 2011, and J une 7, 2011.

B. Analysi s 1. Legal Stand ard
I t violates due proce ss to put an incompetent person to trial. When a trial court err s in 1 6 failing to conduct a competenc y hear ing, the reme dy is to abate the appea l and rema nd the cause to the trial court to conduct a retrospe ctive trial if one is fea sible. I f a defe ndant is tried and convicted, 1 7
but is later found to have been incompetent to stand trial, that trial is rende red invalid on due-pr ocess
g rounds. Ho we v er , i f on rema nd a retrospe ctive competenc y evalua tion is possible, and a 1 8
defe ndant is found to have been competent to stand trial when he was convicted, the defe ndant’s

Cooper v. Oklahoma , 517 US. 348, 354 (1996); Drope v. Missouri , 420 U.S. 162, 171-72 1 6 (1975). Ow ens v. State , 473 S.W .3d 812, 816 (Tex. Crim. App. 2015); Hawkins v. State , 660

1 7 S.W .2d 65 (Tex. Crim. App. 1983); Brandon v. State , 599 S.W .2d 567 (Tex. Crim. App. 1980); Ex parte Harris , 592 S.W .2d 624 (Tex. Crim. App. 1980).

Owens , 473 S.W .3d at 816. 1 8TURNER – 18

conviction re mains valid and there is no due-proc ess violation. 1 9
A d ef endant’s competenc y to stand trial is a quest i o n o f fa ct t o b e d et er m i n ed b y t h e
appropr iate fac tfinder, wh i ch , i n t h i s case , was a competenc y jury

. I n a competenc y trial under 2 0
Article 46B, the fac tfinder’ s task is to decide if the defe ndant, wh o i s p re sumed to be competent, proves incompe tency

by a pre pondera

nce of the evidenc e. I n Morris v. State , we sa id:

2 1
A person is incompetent to stand trial if t h e person does not have: (1) sufficie nt prese nt ability to consult wit h t h e p er s on’s lawy er with a rea sonable deg ree of rational understanding ; or (2) a rational as well as fac tual understand i n g o f the proce eding s ag ainst the person. Evidence rela ted to these issues includes whether a defe ndant can (1) understand the char g es ag ainst him and the potential conseque nces of the pending criminal proce eding s; ( 2) disclose to counsel pertinent fac ts, e vents, and s t ates of mind; (3) eng ag e in a reasoned choice of leg al s trateg ies and opti ons; (4 ) understand the adver sarial nature of the criminal proce eding s; (5) exhi b i t appropr iate cour

troom behavior; a

nd (6) testify

. 2 2 A reviewing court mea sures the pr opriety of a c ompetency

deter mination under the lega l standard set out in Article 46B .003(a)

. 2 3

2. Com petency C laim s on Origin al Su bm ission are M oot

Id

. 1 9
T E X
. C O D E C R I M
. P R O C
. art. 46B.051. See also Morris v. State , 301 S.W .3d 281, 287 2 0 (Tex. Crim. App. 2009). Under the competenc y statute, the issue of competenc y is de cided by the trial judge unless either party reque sts, or the trial judge on his own motion direc ts, that it be decide d by a jury

. T E X
. C O D E C R I M
. P R O C
. ar t. 46B.051. We need not addre ss whether the prohibition ag ainst waiving a jury in a death- penalty trial applies to a competenc y trial in a death- penalty case . See T E X
. C O D E C R I M
. P R O C . arts. 1.13(b) , 1.14(a)

. T E X
. C O D E C R I M
. P R O C . art. 46B .003(b); Morris , 301 S.W .3d at 285. 2 1
Morris , supra at 285–86 (interna l quotation marks and citations omitted). 2 2 Id

. at 291 (citing W

hitehead v. State , 130 S.W .3d 866, 872 (Tex. Crim. App. 2004) (“A n 2 3 appellate court’s revie w of the rec ord itself is g ener ally limit ed to the evidenc e befor e the trial court at the time of the tria l court’s ruling .”))

.TURNER – 19

Four teen of the points of err or Appellant raised on direc t appea l cla i m ed t h at he was incompetent to s t an d t ri al , or that the trial court should have stopped the trial at various points to conduct a formal competenc y h ea ri ng . Appellant’s first eig ht points of error were resolved in his favor when we sustained his ninth point of err or, abate d the appea l, a nd rema nded this matter for 2 4

a retrospe ctive competenc y trial. The alleg ations in points of err or ten throug h fourtee n in 2 5 Appellant’s orig inal brief could b e v i ab l e only if he wer e found incompetent. Given the jury ’s verdic t that Appellant was competent to stand trial, the points of err or rela ted to competenc y in his orig inal brief are now moot. We g rante d Appellant’s motion for lea ve to file a supplemental brief afte r the retrospe ctive competenc y trial, an d h e h as raised seven points of err or reg arding that
proce eding . We will address those issues next.

3. The Trial Court F ollow ed Our Rem and O rder
I n supplemental p o i n t o f err or si x , Appellant arg ues t hat t he trial court rever sibly err ed by conducting the retrosp ec t i v e competenc y trial without full and meaning ful considera tion of all
aspec ts aff

ecting the fea sibili ty of the proce eding

. Appellant complains that the trial court failed to follow our rema

nd order by not conducting a hear ing to consider eac h of the elements of fea sibili ty

. We do not ag ree with that interpreta tion of the rec ord, and w e find that the tria l court did not err

. Our rema nd order direc ted the trial court to dete rmine whether a retrospe ctive competenc y trial was fea sible. The State provided the trial court with a “B ench Memorandum on the Fe asibility

See supra at n.8. 2 4 See supra at n.9. 2 5TURNER – 20

o f a Retroac tive Competency Hea ring ,” in which it listed evidenc e to show Appellant was 2 6 competent during trial. The trial court appointed two phy sicians to evalua te Appellant’s prese nt competenc y , but Appellant ref used to meet with them. The trial court deter mined that a retrospe ctive competenc y

trial was f

easible a nd set a da te for tr ial.
I n his supplemental brief, Appellant does not say why the retrospe ctive competenc y trial was not fea sible based upon the e vidence available to a ll the parties. Appellant instead c omplains that the trial court never held a hear ing, sug g esting that he was ne ver a ffor ded the oppor tunity to make
any arg uments ag ainst fea sibili ty

. But Chapter 46B does not require the trial court to hold a hear ing

on fea sibili ty , and our rema nd order did not require the trial court to hold such a hear ing. And even if Appellant wer e entitled to one, the rec ord is re p l et e with occa sions on which all parties wer e
prese nt, in open court, to litigate this very issue. The topic of Appellant’s prese nt comp et ency
g ener ally dominated the discussion on all occa sions, and other evidentiar y fac tors which may contribute to a f

easibility deter mination remained unc ontested. The parties litigated the fea si b i l i t y i s s u e for near ly three y ear s. Whil e this case was on

rema nd, Appellant’s claim that he was prese ntly incompetent cre ated the only impediment to
proce eding with the retrospe ctive competenc y trial. Th e re co rd i n dicates that the trial court had alre ady deter

mined that a retrospe ctive competenc y trial was feas ible but was awa iting g uidance from this Court as to whether it first neede d to make a deter mination about Appellant’s prese nt competenc y . The parties’ co n duct during this time confirms as much. The fea sibili ty issue was
arg ued in open court on at least three differ ent occa sions, and while the parties consistently debate d

The State notes in its brief that it mistakenly ref err ed to the retrospe ctive competenc y trial 2 6 as a “ Retroac tive Competency Hea ring .”TURNER – 21

the rele vance of Appellant’s prese nt competenc y , Appellant never rebutted the State’s position that

a retrospe ctive competenc y trial was fea sible based on the passag e of time or the quality and quantity of evidence. Even on the morning s of the retrospec tive competenc y trials, Appellant’s objections

wer e based upon claims of prese nt incompetenc y . We find no err or in the manner of the trial court’s fea sibili ty deter mination, and we ove rrule A ppellant’s six th supplemental point of err or. 4. The Retr ospective C om petency Trial was Fe asibl e and Possible
I n supplemental point of err or seven, Appellant arg ues that the trial court reve rsibly err ed by conducting a second retrospe ctive competenc y trial that was not fe as i b l e and that violated his constitutional rig ht to due proce ss. Appellant arg ues that due proce ss prohibits the jury from hear ing the fac ts of the case , but the fac ts o f t h e ca s e wer e nece ssary to show that Appellant was incompetent. Appellant does not a ppear to arg ue that he was prohibited from introducing specific evidenc e. He claims instead that, in this case , t h e p ro cess itself was inhere ntly unworka ble. For instance, he arg ues that in order to f ind he was incompetent, the jury neede d to hear that Appellant thought the May or of Kendleton had hired s o m eo n e wh o l o oked like him to commit the double homicide, but such evide nce w ould reve al “the de vastating fac ts of the offe nse.” But the purpose of the retrospective competenc y trial was to dete rmine Appe llant’s ability

to effective ly consult with counsel ; it was not desig ned to measure the scope of Appellant’s delusions about the offe nse. And that deter mination—whether Appellant was able to sufficie ntly consult with counsel—c ould be made without consideration of the fac ts of the ca s e. No one arg ued that Appellant lacke d a rational understanding of the proce eding s ag ainst him. The disputed issue was 2 7

At the first retrospe ctive competency trial, for ex ample, when asked whether Appellant 2 7 knew “about what was happening ” and wa s “aw are of the proce eding s,” Appellant’s attorney (continued...)TURNER – 22

whether Appellant maintained the ability to e ffe ctively consult with his attorney s. The ar g uments
prese nted to the jury involved a compar ison of Appellant’s desired trial strateg y with the strateg y that defe nse counsel pursued at trial. What the rec ord now shows, and what the State established at the retrospe ctive competen cy trial, is that Appellant did not lack the ability to consult with counsel. Appellant wa s able to communica te with his attorney s; he just disagr eed w ith their trial strateg y . Both parties secur ed the testimony of important witnesses for the r etrospec tive competenc y trial. The jury hear d from Drs. Axelrad and Goll ah er , and their testimony was subject to crossexamination. Appellant’s trial attorney s wer e the leading advocates of Appellant’s incompetenc y , and both wer e ava ilable to testify . Appellant’s initial disclosure of e x pert witnesse s also included the names of five competency ex p erts, som e of whom had previously testified i n the proceeding

. Both of the fore nsic mental health experts who eventua lly testified at the retrospe ctive competenc y trial wer e familiar with Appellant’s case based on their prior evalua tions. Appellant’s retrospe ctive competenc y

trial occ urre d about six y ear s after he wa s convicted. There is no hint that the qua lity

o r quantity of the evidenc e had materia lly chang ed from the time of trial in a man n er t h at undermined the fe as ibilit y of the proce eding

. Given the passag e of time and the availability of 2 8 experts, Appellant had more evidenc e than be fore to support his claim of incompetenc y . Def ense counsel claims that it violated his rig ht to due proce ss to be forc ed to choose whether

to offe r evidenc e of incompetenc y that reve aled the brutal fac ts of the case . We believe, though, that

(...continued) resp o n d ed that “He [Appellant] was alway s clea r about what my role was, Mr. Fe lcman’s [P rosec utor] role, the J udg e’s r ole in these proc eeding s.”

See Pate v. Robinson , 383 U.S. 375 (1966) (re man d i n g d ef endant’ s case to the district 2 8 court for a compe tency

hear ing six y ear s after

his conviction).TURNER – 23

whateve r the difficulties of making such a choice , they did not cause a violation of due proce ss. The tri al co u rt d id not err in conducting the retrospe ctive hear ing. We overr ule Appellant’s seventh supplemental point of er

ror. 5. Appellan t’s M otion f or Mistr ial Appellant arg ues his first four supplemental points toge ther. I n supplemental points of err or

one and two, he alleg es violations of Article 46B and due proce ss beca use the trial court denied his motion for mistrial and allowed a juror to rema in on the jury when, as a panel member, the juror had

rese arc hed Appellant’s case on the internet and text ed a rela ted news article to his wife. I n supplemental points of err or three and fou r, Ap p el l an t alleg es violations of Article 46B and due
proce ss beca

use the trial court ref

used to poll the venire panel and did not question seate d jurors to deter mine if they

had lea rned a bout the fac ts of the ca se.

(A) F acts During a lunch brea

k afte r the jury was sworn, one of the seate d jurors, Gar cia, informed the bailiff that he had Goog led Appellant’s name during the lunch brea k. When the parties returne d to the courtroom, the trial court noted that “Appa rently we have a juror who did a littl e rese arc h on his own.” The trial court a sked Ga rcia what he ha d done:
Gar cia: Well, I was—a fter we—s ai d t ak e 20 minutes to g o to the restroom,

I we n t o u t s i de. I just Goog led the name of the defe ndant and the name of the case . And then we came back i n , an d we sat down. When we s at down, t hey called the 12 names that g ot on the s tand. And when we went to the other room, I told [t he bailiff] that I Goog led his name. Trial Court: J ust ex actly what did y ou find out about the ca se?
Gar cia: Well, I just saw a news repor t f rom the news from AB C 13 in 2011, I think it was, that he had just committed a murder. And t hen I justTURNER – 24
g lance d at it and— Trial Court: You didn’t rea d the whole a rticle?
Gar cia: No, I

g lance d at it. Trial Court: You understand, sir, that these proce eding s today have nothing to do

with that trial—
Gar cia: Right. Trial Court: —that we’re fo cused on a very specific issue. Are y ou g oing to be

able to set aside what y ou found out in that Goog le—wh at y o u saw on Goog le and be able to make y our dec ision based on the evidenc e y ou hear in this proce eding and answe r the questions that are submitt ed to y ou?
Gar cia: Yes, sir. Trial Court: All rig ht.
Gar cia: Yea

h, I just wanted to make the Court awar e that I Goog led. Trial Court: Okay

. Gar cia: When y ou made a comment about Goog ling, I Goog led befor e I knew

it was a— Trial Court: Well, y ou know y ou can’ t do that any more?
Gar cia: Right. Trial Court: All rig ht. A nd y ou know that the fac ts tha t w e raised today may not

have been on any

thing y ou saw or hear d, and it has nothing to do with that. You’re able to set that out of y our mind?
Gar cia: Yes, sir, it was like f rom 2011. I t was old. The trial c ourt then allowe d the par ties to question Garc ia: Ms. Martin: Are y ou awa re if any bod y el s e d i d t h e same thing? Did y ou see any body else Goog ling?TURNER – 25

Gar cia: No, ma’a

m. Ms. Martin: Did y ou talk about the fa cts of the c ase w ith any body else?
Gar cia: Now, I just text ed my wife. I said hey , I ’m about to g o back into the

case , this is t he ca se, I ’m about to find out if Ig et picked. Ms. Martin: So y ou text ed the name of the de fenda nt?
Gar cia: Well, I sent her this article

. I g lance d at it. I had my phone. I text ed

my wife, said, hey , I might get picked because I —I had work stuff. And I said, hey , I ’m about to g o in. This is the case . . . Then I came in here , sat down five minutes late r and g ot picked.
Ms. Martin: And I appre ciate—I think we all appre ciate the fac t that y ou went and

talked to the bailiff about it. So can y ou tell me what y ou know about [Appellant] from—fr om gla ncing at the ar

ticle?
Gar cia: I t was just looking at the headlin e. I t was like he murdere d

somebody

. And then acc ording to the thing—a nd I almost thought it wasn’t the case . I t said in the end h e wa s convicted in 2011 or awa iting, I

g uess, sentenc ing. Ms. Martin: Why

didn’t y ou think it was him?
Gar cia: Well, I mean, I wasn’t positive. I thought it was him. And I was like,

well, it’s done. And then I put the two toge ther, well , t h en we’ re g oing ba ck to that ca se. Ms. Martin: Oh, bec ause w hen we talked about it being retrospe ctive?
Gar cia: Right, rig ht. Ms. Martin: Okay . So now y ou fee l confident that that wa s the ca se?
Gar cia: Well, y eah, be cause I ’m here

. Ms. Martin: Okay

. Yea h. Good p o i n t

. Ok ay . S o n o w y o u k n o w he wa s convicted of

murder?
Gar cia: Right. Ms. Martin: Okay . And he—You don’ t know what his punishment was?TURNER – 26

Gar cia: No, beca

use all I saw was about the ty pical—B eca

use I saw the title, y ou know, as y ou do most of the article s. You know, I k ind of g lance d throug h it, and went to the very end and—I saw the headline with “ABC 1 3 " printed on it, and it said “Richmond, Texas.” Another thing it said, I went down , g lance d, it said murder or something. Scrolled down quickly

. Went down to the bottom. And it said “convicte d, awa iting sente ncing .” And that wa s it. Ms. Martin: That wa s i t ? No o t her kinds of other issues about sentenc ing or

any thing?
Gar cia: No. Ms. Martin: No mention of who he killed?
Gar cia: His mother, I want to say . And that was— Ms. Martin: Okay . Did it mention any witnesses?
Gar cia: No

. L i k e I said, I didn’t rea d down at the end. I just rea d the t o p ,

g lance s, ty

pical, y ou know, to the bottom. Ms. Martin: So convicted of murder, it was his mother, waiting fo r p u n i s hment,

happene d in Richmond, Tex as? That wa s it?
Gar cia: Yes, ma’ am, that I can r emember , that I can r eca ll.

. . . The State: Mr. Gar cia, the que stion really on this is can y ou set aside wha t y ou just rea d and just decide whether th i s d ef endant—oka

y —had the ability to consult with his attorney ? That’s the only issue here befor e y ou today

. Gar cia: Right, we ll, I ’m g oing to have to. That’s my duty

. The State: Huh?
Gar cia: That’s my duty , to put it aside, so y es. The State: How would it aff ect y ou—How would it aff ect y ou, what y ou know, in answe ring that question of whether he was able to consult with his attorney ? I s it goingto affe ct y ou, or how would it aff ect y ou?TURNER – 27

Gar cia: Well, befor e I hear any thing, obviously , y ou gl ance at it, he’s been convicted, but not knowing—knowing that y ou’re say ing something else, it shouldn’t aff

ect me. The State: The J udg e needs to know how it’s g oing to aff ect y ou, if it’s g oing to aff ect y ou in answer ing the questions. Be cause when y ou g et down to the point of—okay

. Def ense counsel say s we can n o t t ry people who ar e incompete nt. You understand tha t?

. . . Gar cia: Right. The State: But y ou know what from this a rticle about what—How does that tie in betwee n the two?
Gar cia: Well, y ou look at t he article , I mean, it’s just not—He’s obviously

found g uilty , so it’s not g oing to be about him being g uilty

. So what I assume is he’s alrea dy g uilty

. We’re going to fi nd out whether he was competent d u ri ng that proce ss. And that’s the way I ’m understanding

. We’re not g oing back to that case . I t’s not like we’ re reope ni n g the case . I t’s just something differ ent. That’s why it wasn’t e ven re levant bec ause it’s not wha t we’r e doing

. The State: Not rele vant. Not re levant to y our issue—
Gar cia: Right. The trial c ourt then hea

rd ar g uments on whether

to gr ant a mistrial:
Ms. Martin: The question “Can y ou set it aside” is insufficient in this context. We

have to have a separ ate jury to preve nt fac ts like that interfe ring with the decision of competenc y . . . I would also reque st if the J udg e does—if the Court keeps the juror on, which I object t o and absolutely motion to have h i m re moved, to question all the other jurors and se e if they

did the same thing

. Trial Court: Mr. Fe lcman? The State: Me and y ou hav e been throug h a lot of t rials. We know t he ser ious

nature of this, but the simple fac t is when y ou deal with these kind of things in a sm all community , people wi ll know. He shouldn’t have go n e ah ea d and g ot on the Goog le. I understand that. But the factTURNER – 28 that he knows something about the case , the question is: I s he able to set that aside, first of all. She say s he does not. But he als o articula ted he’s here for a very specific purpose. He understood exactly what he’ s here for, to decide whether he wa s competent a

nd could he consult with his attorney at that particula r time. And he said it didn’t matter to him or he did not think it was a rele vant fac t that he was convicted of it. There fore , I do not know if y ou could ask more from a juror

. . . I can understand [defense counsel’s] motion. I can understand it. But on the other hand, is it re al l y nece ssary in this particula r ca se whe n he’s g one ahead a nd articula ted he knows w hy he’s he re, tha t the fac t he was convicted, he could set that a side and knows that doesn’t have any thing to do with w hether he was able to co n s ult with his attorney

. I don’t know if y ou could ask any more from anothe r juror. Ms. Martin: He k n o ws t h at he was convicted. We had a mistrial [i n the first

retrospe ctive competenc y hear ing] beca use the jury found out he was convicted from the questioning of Pat McCann. His conviction is one of the core things that we wer e try ing de spera tely

to dance around. .

. . There ’s—Ther e is nothing more in terms of what a competenc y jury isn’t supposed to know. And it goe s back to we ’re alre ady in a dang er zone. . . At the very least

. . . we need to question t h e o ther jurors on this panel. There is no way this taint can be mitigated. There ’s a pr oblem with this case. The re’ s no way . Trial cour t: All rig ht. I ’m g oing to de ny y our motion for a mistrial. The jur or’s conv i n ce d m e that he can set aside the information he has g ather ed and unders t an ds that he’s focuse d on only one issue and one issue only , and that’s competenc y . I t’s denied. And, [baili ff], when y ou took the ju rors back, did y ou—any of them indicate that they had done any rese arc h or had any conver sation about—about the case or any body had had a

conver sation with him about the case? The ba iliff: No, sir, there was none . No. Trial Court: Okay

. I ’m satisfied. All rig ht. L et’s bring the jury in for the opening

statements. (B) Analysis
A mistrial is an appropr iate reme dy in extreme case s for a narr ow class of highly prejudicia lTURNER – 29

and incura

ble err ors. We revie w the evidenc e in the light most favor able to the trial court’s ruling ,

2 9
and consider only those arg uments befor e the court at the time of the ruling

. The trial court’s ruling 3 0 must be upheld if it was within the zone of re asonable disag ree ment. 3 1
A mistr i al i s n o t n ece ssarily the corr ect reme dy when jurors come to lear n about a defe ndant’s ca se in a c ompetency trial. We have sa id: The purpose of a separ ate hear ing befor e a differ ent jury is to allow deter mination of competenc y of the defe ndant to st an d trial uncluttere d by evidenc e of the offe nse itself.

. . . Evidence of the crime may adver sely aff ect the jury ’s deter

mination of the defe ndant’s competenc y to s t an d trial by confusing the jurors or prejudicing them ag ainst the defendant. Not ever y mention of t he crime itself wil l be prejudicial; to nece ssitate re v er s al evidenc e of the offe nse broug ht to the attention of the competenc y jury must be of such natu re as t o d eny the acc used a fair trial and impartial deter

mination of his competency

. 3 2
I n Barber , the entire jury lear ned that the defe ndant had been con v i ct ed o f capital murder when, on c ross-examination, a State’s witness g ave defe nse counsel a non-r esponsive answ er tha t involved the nature of Ba rber ’s offe nse. We held that t h e mere mentioning of the nature of the

3 3
crime for which defe ndant was convicted was not sufficie ntly prejudicia l to war rant reve rsal. The

3 4

same conce pt must apply in this case wher e only one juror g lance d at an old internet article but did not share tha t information with any other juror

.

Hawkins v. State , 135 S.W .3d 72, 77 (Tex. Crim. App. 2004). 2 9
W ead v. State , 129 S.W .3d 126, 129 (Tex. Crim. App. 2004). 3 0 Id

. 3 1 Barber , 757 S.W .2d 359, 361 (Tex. Crim. App. 1988). 3 2 Id . at 362. 3 3 Id . at 361–62. 3 4TURNER – 30

Fur ther, a mistrial is not require d if the t rial court is convince d that a juror will ignore any outside information rec eived. The c halleng ed juror c lear ly articula ted his unde rstanding that the 3 5
internet a rticle a bout Appellant’s ca se wa s irrele vant to the competency deter mination. Any

juror who can put aside any bias, prejudice , or conclusion of g uilt and base his verdic t on the evidenc e
prese nted in court may

serve on the jury

in the trial court’ s discretion. 3 6
We a lso f ind tha t the trial court did not abuse its discr etion by ref using to poll the jurors. 3 7
After the jurors we re e mpaneled a nd sworn, the tria l court instructed the jurors:
Do not discuss this case with any one or allow any one to discuss this case with y ou. That includes by elec tronic means: Fa cebook, Twitter, looking up things o n the computer, te lephone c alls, newspape r ar ticles, or any other mea

ns by which people may communicate w ith y ou or y ou may communicate w ith them. Ap pellant asserts that Stephen Dogg ett, an attorney who was watching the proceeding s, inf o rm ed defe nse counsel that he had seen people Goog le on their phones during the brea k. Def ense counsel raised this conce rn to the trial court, and the court responde d that it would decide whether to poll the jury if and when Dog g ett testified about his observa tions. Dog g ett, howeve r, never testified befor e the trial cour

t about his observations of the juror s. The trial court ref

used to poll the jury , but it did instruct the prosec utors to monitor the social

See e.g. , Bustamante v. State , 106 S.W .3d 738, 743–44 (Tex. Crim. App. 2003) (mistrial 3 5 not require d when jurors are g iven an eff ective instruction to disreg ard outside information); Art. 35.16(a) (10) (“[I ]f the juror states that the juror fee ls able, notwithstanding such opinion, to rende r an impartial ve rdict upon the lawand the evidenc e, the court, if satisfied that the juror is impartial and will rende r such verdic t, may , in its dis cr et i o n, admit the juror as competent to serve in such case .”). Barber , 737 S.W .2d at 829–30.

3 6 See Mays v. State , 318 S.W .3d 368, 376–78 (Tex. Crim. App. 2010) (holding that it was 3 7 not an abuse of di scre tion for the trial to ref use t o poll the j urors abo u t their pot ential ex posure to media cove rag e of the case ).TURNER – 31

media acc ounts of the jurors. District Attorney I nvestig ator Matthew Card en as t es tified that he located sever al of the jurors’ social media acc ounts and that he d i d n o t find “any thing at all that would show them posting a ny particula

rs about the court case or any case for that matter.” I t was Appellant’s burden to show that any of the jurors wer e eng ag ed in improper conver sation about the

ca s e. He failed to do so, and it would be improper to infer any err or from this rec ord. 3 8 Consequently , we conclude that the trial court d id not abuse its discretion in deny ing Appellant’s motion for mistrial and in deny ing his reque st to question the other jurors. Appellant’s supplemental points of error

one throug h four a

re ove rruled. 6. The Jury Charge
I n supplemental point of err o r fi v e, Appellant claims that the jury char g e impermissibly limit ed the time period during which he was require d to be competent in violation of his rig ht to due
proce ss. The trial cour

t held a cha

rg e conf ere nce at the close of evidence , and Appe llant objected

to the date rang e contained in the jury char g e: April 15, 2011 throug h J une 7, 2011. Def ense counsel
arg ued that the corr ect date rang e should have been Marc h 30, 2010, when counsel wa s fi rst appointed to the case , throug h the hea ring on Appellant’s motion for ne w trial on Aug ust 8, 2011. Appellant arg ues that the rec ord “re flec ts e vidence of incompetenc y from near ly the outset of t he case,” when his first-appointed attorney filed a moti on for a competenc y evalua tion in May of 2010. Appellant contends that the issue of incompetenc y was continually raised to the court long befor e April 15, 2011, and t h at his incompetenc y spanned a longe r period of time than the twomonth pe riod the jury was permitted to c onsider in r ender ing its ve rdict. There fore , he claims, the

See Ex parte W

atson , 6 0 6 S

. W

. 2 d 9 02, 906 (Tex. Crim. App. 1980) (“[I ]t is the 3 8 defe ndant’s burden to establish that the conver sation betwee n a non-seque stered juror and another conce rned the case at trial.”)

.TURNER – 32

time period in the jury char g e should have ref lected a broade r time span. Appellant relies on Drope for the proposition that a defe ndant must be able “to consult with counsel, and to assist in prepa ring his defe nse.” Whil e the rule pronounce d in Drope is perf ectly clea r that a defe ndan t m u s t be 3 9 competent to stand trial, we do not find any authority to support Appellant’s arg u m en t that a defe ndant must be competent throug hout pretria l proce eding s, or that a jury char g e at a competenc y trial must encompass that time fra me. Chapter 46B authorizes a j u ry t ri al on the issue of competenc y only to deter mine an individual’s competenc y “ to stand trial on the merits.” The statute does not require a specific time 4 0 period for which a defe ndant must have the requisite “suff icient prese nt ability to consult” with counsel other

than the time of trial: (a) A per son is incompetent to stand tri al if the per son does not have: (1) s u fficient prese nt ability to consult with the person’ s lawy er wi t h a rea sonable de g ree of ra tional understanding ; or (2) a rational as well as fac tual understanding of the proce eding s ag ainst the per son. (b) A defe ndant is presumed co m p et en t t o s t a n d t r i a l an d s h all be found competent to stand trial unless proved incompetent by a preponde ranc e of the evidenc e. 4 1
The expressed rea son for a 46B proce eding is to protec t a defe ndant’s rig ht to be competent during his trial, and that is exactly what the jury deter mined. We find no err or in the jury char g e, and w e

overr ule Appellant’ s fifth supplemental point of er ror.

Drope , 420 U.S. at 171. 3 9 Art. 46B .005(b) ( emphasis adde d). 4 0 Art. 46B .003 (empha ses adde d). 4 1TURNER – 33 III. Defense Counsel’s Concession of Guilt
A. F acts As we e x plained in connection with the competency issues, Appellant’s relationship with his defe nse attorney s was contentious

. T h e acrimony was partly due to the attorney s’ desire to depose Appellant’s children, but it was also in part due to the attorney s’ conclusion that Appellant’s interests we re be st served by conce ding tha t he killed the victims.

1. P ret rial
Be fore trial, Appellant asked the trial court to cha ng e his defe nse tea m beca use he f elt that he wa s “being avoided a

nd not defe nded.” A

ppellant raised a number of complaints that we ne ed

not detail h er e, except to say that Appellant was in part disputing the attorney s’ mitigation investiga tion. One of his attorney s, Patrick McCann, responde d that Appel l an t “does not have a voice overr iding ours and tactics. His rig hts are to decide whether to plea and to testify .” McCann further contende d that “mitiga tion is a critical component of any death capit al case and we would be remiss in our constitutional duties wer e we not pursuing that. I cer t ai n l y u n d er s tand that Mr.
Turner has views on these matters; howeve r, those matters and his views are not and do not comport with our obliga tions under the law.” Nea r the conclusio n o f t h e hear ing, Appellant told the trial court, “I don’t want them re p re s en t i n g me,” but said that he did not have the means to hire an attorney of his c hoice. I

n a later pretria l hear ing, the trial court summarized an a ffidavit by one of the defe nse attorney s as reve aling an attitude by Appellant that “is consistent with the attitude that [he] has display ed throug hout these proc eeding s reg arding his Defe nse Counsel.” 2. Openin g Statem ents During op ening statements, defe nse attorney McCann told the jury that he expected theTURNER – 34

evidenc e to show that Appellant killed his wife in a “jea lous rag e” but that the killing of his motherin-law was not intentional. McCann arg ued that, althoug h g uilty of “two terrible horrible crimes,” Appellant was not g uilty of capital murder. McCann also told the jury that Appellant “doesn’ t like 4 2

me very much,” and McCann made it clea r that Appellant disag ree d with his attorney s’ decision to

conce de that Appellant killed the victims: “And if y ou look at him there , he’s a larg e man, as he sits there scowling at me. B eca use he c an’t a dmit what he did, to himself or any body else.” 3. Appellan t’s Testim ony Ag ainst his attorney s’ advice , Appellant insisted on testify ing. When the questioning beg an
t o fo cu s o n what happene d the day the victims wer e killed, McCann expressed the conce rn t h at ethics preve nted him from continuing with Appellant in question and answe r format. The prosec utor objected to Appellant being allowed to g ive a narr ative respo n s e and urg ed McCann to pass the wi tness. McCann ins isted on try ing to proce ed, and Appellant eventually testified t hat he d i d n o t kill the victims and that the victim’s deaths wer e a result of a conspirac y involving his wife having 4 3
an af fair w ith the may or. On cross-examination, the S tate asked Appellant if he had hear d that his attorney had tol d the jury that Appellant killed his wife but that the g randmother ’s death was an acc ident. Appellant responde d, “And I wanted to object to it.” Be fore Appellant could respond further , the prosec utor

McCann testified at Appellant’s motion for new trial hear ing about the defe nse strateg y 4 2 pursued a t trial: We believed the only

viable, honest strateg y was to g o wher e the evidenc e took us, which was that clea

rly [ Appellant] was involved in the killings, and despite his constant exhortations to us to g o find the rea l killers, we believed we had a g ood faith arg ument for a

lesser inc luded offe nse at the time . . . Appellant maintained tha t he was not a t the house whe n the victims were killed. 4 3TURNER – 35

cut him off and asked if he had hear d it, and Appellant responde d that he had. The prosec utor stated that Appellant just thought “these two attorney s should g et y ou off for killing two women; there fore
y ou’re mad at them.” The trial court sustained an “ar g umentative” objection to the prosec utor’s question, but Appellant responde d to the question by say ing, “I didn’t kill two women.” The 4 4
prosec utor further asked if Appellant would ag ree that his attorney s wer e try ing to save his life, and Appellant responde d, “No.” When presse d further on the issue, Appellant testified that he asked the defe nse attorney what he wa s go i n g to say in opening statement beca use they had not been communicating , and he complained that his attorney s wer e not investiga ting his alleg ations about the may or. The prose cutor then pr essed Appe llant on his conspiracy theory about the may or: The State: Do y ou know they talked to the may or? Appellant: That’s wha t they told me. The State: I know. Ever y body did. Appellant: And I ’ve, y ou know—I looked at the thing. He was obviously ly ing. The State: Do y ou know these two g entlemen have trac ked ever y thing y ou have ever said down? Appellant: No. The State: And it comes to one c onclusion: You killed those two women. Appellant: I didn’t kill any one. The State: And they ’re try ing to sa ve y our life. You unde rstand that? Appellant: I didn’t kill any one.

The trial c ourt admonished Appe llant to wait until t he cour t ruled on an obje ction, and 4 4 Appellant re sponded, “I

was just focuse d. I ’m sorry . I was just focuse d on his questions.”TURNER – 36

Appellant claimed that his daug hter mistakenly identified him as the perpe trator and that the murders wer e the result of a conspirac y involving the may or. At one point during this questioning,
McCann objected, “Clear ly , my client has g one into a para noid state that is bey ond ridiculous at this point.” L ater , when the pr osecutor a sked if Appe llant wanted to chang e any of hi s story and “beg for f org iveness,” A

ppellant re plied, “I

didn’t kill any one.”
On redire ct examination, McCann asked: “Mr. Turner , in y our mind, all that drivel was true, wasn’t it? ” Appe llant responded: “ I t is true.” 4. Before Closing Argum ents On the morning of final arg uments during the g uilt stag e of trial, Appellant announce d to the trial court that he was “firing my defe nse team and repr esenting my self” beca use his a ttorney s had
“ser iously neg lected my

case .” The trial court or dere d McCann to r espond direc tly to A ppellant’s complaints. McCann re sponded:
I understood him [Appellant] to mean that he reje cted the theory t h at it was an acc id en t b eca

use his testimony indicated he was not there

. The only plausible defe nse that [we] could see coming from the e vidence that we e x amined is that the second killing—while the first killing m ay have been an act of passion betwee n a jealous husband and wife, the second killing would appea r to have been unintended.
McCann conclude d that this was “our conclusion and our best trial strateg y , g iven the
g uilt/i nnocenc e fa cts as they emer g ed fr om leng thy

investiga tion on both si des.” A di scussion of Appellant’s g rieva nces ag ainst his attorney s continued. At the end of t his discussion, Appellant stated, “Tha t’s it. I ’ve fired him. I t ’s not his decision.” The trial court responde d that it was also not Appellant’s decision and that the trial court was deny ing Appellant’s motion. Appellant responded, “ I expected y ou to do that.” 5. Jury ChargeTURNER – 37

Def ense counsel reque sted the submissi on of the lesser- included offe nses of murder, felony murder, and manslaug hter. The trial court denied these reque sts, and the jury char g e prese nted only the cha rg ed off ense of capital murde r. 4 5

6. Closing Argume nt
I n closing arg ument, McCann ag ain conce ded that Appellant was the killer. McCann stated that Appellant “snappe d,” that he “still hasn’t acc epted what has happene d,” and that the jury
“ac tually g ot to watch what he [Appellant] thinks is the truth beca use he literally cannot acc ept what happene d.” McCann further expounded that “[i] n his mind, very sadly , it is the truth.” Depr ived of

a lesser- included-of

fense instruction, McCann never theless arg ued that Appellant was not g uilty of capital murde r bec ause the killing of the se cond victim was not intentional. 4 6 B. Analysi s 1. McCoy
I n May of 2018, the Supreme Court of the Unit ed S tates i ssued McCoy v. L ousiana

. We 4 7
order ed additional briefing from the parties to assess what impact t he de ci s i o n h ad on the present

case , and we now conc lude that it controls.

I n deny ing the reque st, the trial court re marke d: 4 5
And I ’ve weig hed it very car efully in my mind, the evidenc e that has been prese nted and y our arg uments. And while I was initially open to including a lesser- included of murder, afte r car eful revie w of the evidenc e in this case and the arg ument of counsel and what the Court perc eives the theory of defe nse counsel to be, I don’t believe it lends itself to a lesser- included offe nse. There fore , I ’m g oing to deny y our reque st. The jury char g e instructed, “A person commits capital murder i f he intentionally or 4 6 knowing ly

cause s the dea th of more than one individual during the same c riminal transac tion.” See supra at n.4. 4 7TURNER – 38

Robert McCoy was char g ed with first-deg ree murder for killing the mother, stepfathe r, and

son of his estrang ed wife. The prosec utor g ave notice of intent to seek the death penalty

. Be fore 4 8 4 9 trial, his attorney conclude d that the evidenc e ag ainst McCoy was overw helming and that, absent a

conce ssion at the g uilt stag e that McCoy was the killer, a death sentenc e was inevitable. When told 5 0
that the attorney planned to conce de McCoy ’s commission of the murders, McCoy was furious and told his attorney “not to make th at conce ssion.” Neve rtheless, in opening statement, McCoy ’s 5 1 attorney proce eded to conce de that McCoy had cause d the victims’ deaths. McCoy protested, and 5 2

out of ear shot of the jury , told the trial court that defe nse counsel was “selling [hi m] out.” Def ense 5 3
counsel was allowed to proce ed, and he told the jury that the evidenc e was “unambig uous” and that the defe ndant had “committed three murders.” He arg ued, howeve r, that McCoy did not have the 5 4 requisite mental state to war rant a first-deg ree murder conviction and was g uilty instead of the lesserincluded off

ense of second- deg ree murder. 5 5

McCoy , 138 S. Ct . at 1505-06. 4 8 Id. at 1506. 4 9 Id. 5 0 Id. 5 1 Id. 5 2 Id. 5 3 Id. at 1507. 5 4 Id. at 1506 n.1, 1509; Id. at 1512, 1517 (Alito, J ., dissenting) (“Eng lish did not admit that 5 5 petitioner was g uilty of first-degr ee m u rd er. I nstead, fac ed with overw helming evidenc e that petitioner shot and killed the three victims, Eng lish admitted that petitioner committed one element of that offe nse, i.e., that he killed the victims. But Eng lish strenuously arg ued that petitioner was not g uilty of first-deg ree murder beca use he lacke d the intent ( the mens rea ) require d for the offe nse.” (continued...)TURNER – 39

Testify ing at trial, McCoy maintained his innocenc e and prese nted an alibi that was “diffic ult

to fathom.” He claimed that the victims wer e killed by the local police and that he had been framed

5 6 by a far flu n g co n s p i ra cy of state and fede ral officia ls, rea ching from L ouisiana to I daho, and including his at t o rn ey and the trial judge

. The jury convicted him of first-deg ree murder and 5 7

sentenc ed him to death. 5 8
The Supreme Court r ever sed McCoy ’s conviction and rema nded the case for a new trial. 5 9
The Court held that the Six th Amendment g uara ntees to a defe ndant “the rig ht to insist that counsel

re fr ai n from admitting g uilt, even when counsel’s experience -base d view is that confe ssing g u i l t offe rs the defe ndant the best chanc e to avoid the death penalty .” The Court further stated, “When 6 0

a client expressly asser

ts that the objective of ‘ his defe nce’ is to maintain innocenc e of the char g ed criminal acts, his lawy er must abide by that objective and may not overr ide it by conce ding g uilt.” 6 1
The Court explained that maintaining one’s innocenc e is an objective of repr esenta tion, not mere ly an issue of tria l tactics, and thus is a de cision rese rved f or the c lient, not the attorney : Trial manag ement is t h e l aw y er’ s province : Counsel provides his or her assistance by making decisions such as what arg uments to pursue, what evidentiar y objections
(...continued) The attorney admitted t h e defe ndant’s g uilt of “a lesser included offe nse”—“ that petitioner was g uilty of the noncapital offe nse of second- deg ree murder in an eff ort to preve nt a death sentenc e.”)

. Id. at 1507. 5 6 Id. at 1513 (Alito, J ., dissenting)

. 5 7 Id. at 1507. 5 8 Id. at 1512. 5 9 Id. at 1505. 6 0 Id. at 1509 (c iting U.S. C O N S T ., amend. 6) (empha sis in McCoy ). 6 1TURNER – 40

to raise, and what ag ree ments to conclude reg arding the admission of evidenc e. Some decisions, howeve r, are rese rved for the client—notably , whether to plead g uilty , waive the rig ht to a jury trial, testify in one’s own behalf , and forg o an appea l. Autonomy to decide that the objective of the defe nse is to asser t innocenc e belong s in this latter categ ory . J ust as a defe ndant m ay steadfa stly ref use t o plead guilty in the fa ce o f overw helming evidenc e ag ainst her, or reje ct the assistance of leg al counsel despite the defe ndant’s own inex p erience and lack of profe ssional qualifica tions, so may she i nsist on maintaining her innoce nce at the g uilt phase of a capital trial. These are not strateg ic choice s about how best to achiev e a client’s objectives; they

are choice s about what the c lient’s objectives in fa ct are . 6 2 McCoy ’s attorney could have tried to persua de the jury that Appellant’s mental state prec luded a capital murde r convic tion, but he could not interfer e with McCoy ’s protestations of innoce nce. 6 3 Finally , the Su p re m e Court conclude d that the err or in McCoy was structura l, requiring automatic reve rsa l o f th e c o n v ic ti on. The Court explained that its ineffe ctive-a ssistance-of -counse l 6 4 jurisprudenc e did not apply beca use wh at was at issue was “a client’s autonomy , not counsel’s competenc e.” 6 5
2. Similaritie s Between McCoy and Pre sent Case The fac tual simil arities betwee n Appellant’s case and McCoy are striking. I n both case s, the

Id

. at 1508 (citations and internal quotation ma rks omitted, emphasis in orig inal). The 6 2 Court in McCoy pointed out that a defe ndant “may hold life in prison not worth living and pref er to risk death for any hope, however s m al l , of exoneration.” Id. The Court also indicated that one possible “objec tive” of a defe nse would be for the defen d an t “t o av oid, above all else, the opprobrium that comes w ith admitti ng he killed fa mily members.” Id. Id. at 1509 (“[Def

ense c o u n s el] could not interfe re with McCoy ’s t elling the jury ‘I was 6 3 not the murder er,’ althoug h counsel could, if consistent with providing eff ective assistance, focus his own collabora tion on urg ing tha t McCoy ’s mental state w eig hed ag ainst conviction.”). Id. at 1511 (“V iolation o f a d e f e n d a n t’ s Six th Amendment-se cure d autonomy ranks as err or 6 4 of the kind our decisions have called ‘structura l’; when prese nt, such err or is not subject to harmlesserr or re view.”) (citing McCaskle v. W iggins , 465 U.S. 168, 177, n. 8 (1984)). Id. at 1510-11. 6 5TURNER – 41

defe nse attorney ’s s trateg y wa s t o concede that the defendant kil led t he victim s but arg ue that the defe ndant was g uilty of a lesser offe nse and that he should not g et a death sentenc e. I n both c ases, the defe ndant disag ree d with that strateg y and testified contra ry to it. And in both case s, the defe ndant maintained that he did not kill the victims and offe red a “diffic ult to fathom” conspirac y theory as a de fense

. 6 6
3. State’ s Argum ents: P rese rvation of E rror and Record Deve lopme nt The State advanc es two arg uments ag ainst reve rsing Appellant’s conviction under McCoy

. First, the State arg ues that Appellant forf eited any err or by failing to timely object. The State contends that the trial court had no duty to addre ss the issue until it was broug ht to its attention and that Appellant failed to object either befor e or d u ri n g d ef ense counsel’s opening statement. The
State’s second arg ument is that the rec ord is insufficient, as curr ently develope d, to show a violation of McCoy

. The S tate conte nds that Appellant did not say during his testimony that he objected t o counsel’s strateg y when told about it. As we shall see, the prese rvatio n and rec ord development claims in this case a

re inter rela ted.

I n a footnote, the Supreme Court stated that McCoy ’s attorney ’s lesser- included-of fense 6 6 strateg y , being based on the defe ndant’s al le g e d me ntal incapa city , “would have encounte red a shoal, for L ouisiana does not permit introduction of evidenc e of a defe ndant’s diminis hed capa city absent the entry of a plea of not gu i l t y b y re as o n of insanity .” Id. at 1506 n.1. The signific ance of this footnote is unclea

r, and the State does not contend that the footnote provides a basis for distinguishing this case from McCoy

. We conclude that this footnote is not a basis for distinguishing Appellant’s c ase f

rom McCoy

beca use Appellant maintained his innocenc e and did not ultimately rec eive a lesser- included-of fense instruction. There is a substantial arg ument that Appellant’s case would fall within the ambit of McCoy even if he had rec eived a lesser- included-of fense instruction, but we need not rea ch that question. See supra at n.62 and acc ompany ing text (maintaining innocenc e and not admitti n g ca using the death of a family member discussed as objectives of the repr esenta tion under the defe ndant’s control); cf. State v. W ilson , 324 S.W .3d 595, 598 (Tex. Crim. App. 2010) (in this Court’s actua l-innocenc e jurisprudenc e, “the term ‘ac tual innocenc e’ shall apply

. . . only in circumstanc es in which a n acc used did not, in fact, c ommit t he cha rg ed off ense or any of the lesser-include d offenses ”) ( emphasis adde d).TURNER – 42

We ag ree that a defe ndant cannot simply rema in silent befor e and during trial and raise a McCoy complaint for the first time afte r trial. But a defe ndant fa ced w ith a McCoy issue should 6 7

not be expected to object with the prec ision of an attorney

. A defe ndant makes a McCoy complaint 6 8
with sufficie nt clar ity when he prese nts “ express statements of [hi s] will to maintain innocenc e.” 6 9
The question we confr ont here , then, is: Does the rec o rd s h o w that Appellant, in a timely fashion, made express statements of his w ill to maintain his innoc ence ? We a nswer that question “y es.” There is no question that Appellant wanted to maintain his innocenc e. During his testimony , he did so expli citly , stating that he did not kill the victims and t h at they wer e killed as part of a conspirac y in

v o lv in g th e ma

y o r . Wh e n th e p r o s ecutor cross-e x amined Appellant about his attorney ’s opening statement, in which the attorney admitted that Appellant killed the victims, Appellant stated that he had wanted to object to it. And despite Appellant’s expli cit disag ree ment with his attorney s’ strateg y during his testimony , defe nse attorney McCann continued to follow that strateg y in closing
arg uments, stating that Appellan t had “snappe d” and that he “still hasn’t acc epted what has happene d.” Also, it is appar ent from the defe nse’ s o p en ing statement that his attorney s knew at the

McCoy , 138 S. Ct . at 1509 (discussing Florida v. Nixon , 543 U.S. 175 (2004)). 6 7 See Gideon v. W

ainwright , 372 U.S. 335, 345 (1963) (“Eve n the intelligent and educated 6 8 lay man has small and sometimes no skill in the scienc e of law.

. . . He require s the g uiding hand of counsel at ever

y step in the proce eding s ag ainst him.”); cf. T E X
. R. A P P
. P. 33.1 (an objection must normally “state[] t he g rounds for the ruling ”). See McCoy , 138 S. Ct. at 1509 (“I f a client declines to participa te in his defe nse, then an 6 9 attorney may permi s s i b l y g uide the defe nse pursuant to the strateg y she believes to be in the defe ndant’s best interest. Presented with express statements of th e cl i en t ’s will to maintain innocenc e, howe ver, c ounsel may not steer the ship the othe r wa y .”).TURNER – 43

beg inning of trial that their strateg y was contra ry to Appellant’s. McCann’s statement that Appellant
“ca n’t admit what he did, to himself or any body else” shows that he knew Appellant denied killing the victims

. At that point, McCann clea rly knew he and Appellant wer e still at odds on how to
proce ed, and that fac t would have been appar ent to the judge and jury as well. Fur ther, Appellant’s attorney s had reve aled in pretria l hear ings that they believed the only decisions Ap p el l an t was entitled to make we re “ whether to plea and to testify .” This further reinfor ces the conclusion t hat the attorney s knew their conce ssions during opening statement wer e ag ainst Appellant’s wishes, that they believed they wer e not require d to follow his wishes, and that, in fac t, they believed they wer e ethically obliga ted to act c ontrary

to his wishes in order to best ser ve his interests.
4. Conclusion
I n l i gh t o f this discussion, we conclude that the rec ord shows that Appellant adequately
prese rved his McCoy claim an d that McCoy was viol ated by defe nse counsel at Appellant’s trial.
Be cause the er

ror is structura l, we conduc t no harm ana ly sis, and a reve rsal and rema nd for a new trial is require d. Be cause Appellant’s rema ining points of err or, even if meritorious, would not result in gr eate r re lief, we need not a ddress them.
We reve rse the judg ment of the trial c ourt and re mand this case f or a ne w trial. Deliver ed: Novembe r 14, 2018 Publis h