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,

268 TH 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 2 68 TH DISTRICT COURT, FORT BEND COUNTY

R eal 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 CLERK2 IDENTITY OF PARTIES AND COUNSEL

The part ies 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

I I

. ARGUMENT

________________________________ ___________________ 7

Respondent’s act is not p u rely ministerial

______________________________ 7

Re lator has an adequate reme dy at law

_______________________________ 1 1

Trial Counsel is not a liar

________________________________ __________ 13

I II. CONCLUSION

________________________________ ________________ 16

CERTIFICATION OF COMPETENT EVIDENCE

_______________________ 1 8

CERTIFICATE OF COMPLIANCE

________________________________ _ 18

CERTIFICATE OF SERVICE

________________________________ _______ 1 93 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 7 41, 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)

................................ ............. 1 6

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)

............................. 1 2

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 , 1 1
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, 42 4
(Tex.Crim.App.1981)

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

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

- 97 (Tex. Crim. App. 2013)

................. passim4

RULES & STATUTES

Tex as Rule of Appellate Procedure 52.4 (a)

................................ ............................... 2

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

................................ .... 1 15 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,

268 TH JUDICIAL DISTRICT, Relator

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

FOR LEAVE TO FILE PE TITION FOR WRITS OF MANDAMUS AN D/OR PROHIBITION

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

APPEALS:

Now comes Albert James Turner

, the real party in interest , by and through his

undersigned c ounsel

, 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 f

ile and lift the stay of Mr. Turner’s current competency trial.

I. I NTRODUCTION

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

prohibit ed Respondent from considering Mr. Turner’s present competency when

evaluating feasibili ty for a retrospective competency trial and prohibited him from6

empaneling a jury for any reason other than retrospective competency

. Regardless

of argum e nts 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

in ability to meet the stringent and well

- established requirements for this Court to

grant leave to file a peti t ion for a writ of mandamus 1

.

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

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

117 (Tex. Crim. A pp. 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. A RGUMENT

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).

R ESPONDENT ’ 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 other than Turner’s present

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

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, t here is nothing ministerial about conducting a feasibility

determination. Responden t 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 to8

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

a t 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.” B owen 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 a ctions

— it

authorize s 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 O rder.

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 consid er for a feasibility9

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

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

duty when determining feasibility other than the requir e ments in this Court’s

opinion.

The only limitation th is Court placed upon Respondent was that the

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

evaluate p ertinent considerations in this case

. Relator never asserts that identifying

“pertinent considerat ions” 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 “pe r tinent consideration ” Respond ent 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 feas ibility

of a retrospective competency trial in this case

.
Respondent has never taken any action to empanel a jury , or expressed any10

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 th e 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 bee n 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 “pl ainly 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 R ELATOR HAS A N 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 i s 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 b e 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, 7 74 (Tex. Crim. App. 1994) (emphasis in

original ). In this case, Relator has no t cited to any well

- settled law fro m 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 remedy12

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 call ing witnesses and transcribing many hours of jail

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

that Relator agrees is available 2

.
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 someti me 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 occu rs.

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.

T RIAL COUNSEL IS NOT A LIA R

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 ha ve 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. Tu rner’s trial counsel Pat McCann:

Turner’s attorney, Pat McCann is well known to this Court, 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 that Turner did not like his counsel, not that Turner was incompetent, and the trial

court could easily have seen through trial counsel’s strategy 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 WL 7392249,*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 Community14

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 a s an anti

death penalty activist who will do anything

, including gam ing 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 in tegrity of the legal profession

by explicitly condemn ing and often reversing convictions based upon com ments 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

lyi ng.” 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 th at 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. Cri m. App. 1985).

Here, Relator names Mr. McCann specifically and i ntimates 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 fraudulentl y 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 claims 4

.

3 Relator suggests that Respondent “could easily have seen through trial counsel’s stra te gy.” If this is true, Relator is suggesting that Respondent allo wed 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 t rial 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)

.

Th ese 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.

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

inflamed like a jury may be. I n stead , this Court is in a position to thoughtfully

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

address Relator’s actions as it sees fit.

III. C ONCLUSION

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. Th e facts and procedural posture of

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

process with specifically cho sen 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 request s 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

competenc y 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 Martin18 CERTIFICAT E 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 3,24 8 words i n i t s e n t i r e t y . This is a computer

generated document created in Microsoft Word using a conventional l4

- point
typeface for all text
, e x c e p t f o r f o o t n o t e s

, which are i n 1 2

- point
t y p e f a c e

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

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

____________________________ Robert A. Morrow 

### /s/ Robert A. Morrow 

# Morrow /s/ Robert A. Morrow 

# Morrow19 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 1 7

, 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 368 th Judicial District Court of Fort Bend County, Texas 1422 Eugene Heimann Circle Richmond, Texas 77469

____________________________ ROBERT A. MORROW 

### /s/ Robert A. Morrow 

# Morrow