Turner, Albert James

Appendix Index

Exhibit Document

Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App. 2013), reh'g denied

A

(Apr. 2, 2014)

B May 30, 2014 Reporter’s Record on Determination of Retrospective Competency

C September 25, 2014 Order on Feasibility of Retrospective Competency Trial

April 28, 2014 State’s Bench Memorandum on the Feasibility of a Retroactive

D

Competency Hearing

January 16, 2015 Reporter’s Record on Determination of Retrospective

E

Competency

January 16, 2015 Defendant’s Motion to Address Mr. Turner’s Current

F

Incompetency and Brief in Support

July 7, 2014 State’s Motion for Enforcement of the Trial Court’s Limited

G

Jurisdiction on Remand

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

Exhibit

A

Turner v. State, --- S.W.3d ---- (2013)

The constitutional standard for competency to

stand trial asks whether the defendant has a

2013 WL 5808250

sufficient present ability to consult with his

Only the Westlaw citation is currently available.

lawyer with a reasonable degree of rational

NOTICE: THIS OPINION HAS NOT BEEN understanding and whether he has a rational as

RELEASED FOR PUBLICATION IN THE well as factual understanding of the proceedings

PERMANENT LAW REPORTS. UNTIL RELEASED, against him.

IT IS SUBJECT TO REVISION OR WITHDRAWAL.

5 Cases that cite this headnote

Court of Criminal Appeals of Texas.

[3] Mental Health

Albert James TURNER, Appellant

Mental Disorder at Time of Trial

v.

The legislative criteria for competency to stand

The STATE of Texas.

trial contemplate a defendant who is at least

No. AP–76580. | Oct. 30, 2013. minimally able to interact with his trial counsel in

a reasonable and rational way, even if they do not

Synopsis necessarily agree, in formulating decisions how

Background: Defendant was convicted in the District Court, most effectively to pursue his defense.

Fort Bend County, Brady Elliott, J., of the intentional murder

of his wife and mother-in-law during the same criminal 1 Cases that cite this headnote

transaction, which was a capital offense. Defendant appealed.

[4] Mental Health

Mental Disorder at Time of Trial

[Holding:] The Court of Criminal Appeals, Price, J., held that In the context of competency to stand trial,

formal competency trial became warranted approximately there is particular cause for concern when a

one month after initial evaluations by psychologist and defendant's mental impairment directly touches

psychiatrist finding defendant competent to stand trial. upon certain fundamental decisions that the

criminal justice system reserves for him to make

personally, albeit after engaging meaningfully

Abated and remanded. with counsel, such as whether to testify in his

own defense.

Keller, P.J., dissented and filed opinion in which Meyers,

Keasler, And Hervey, JJ., joined. Cases that cite this headnote

[5] Mental Health

West Headnotes (12) Mental Disorder at Time of Trial

Precisely because the defendant retains ultimate

authority over fundamental decisions that the

[1] Constitutional Law

criminal justice system reserves for him to make

Incompetency or Mental Illness

personally, such as whether to testify in his

A criminal defendant who is incompetent may own defense, it is critical, in deciding whether

not be put to trial without violating due process. defendant is competent to stand trial, that he be

U.S.C.A. Const.Amend. 14. able to consult with counsel with a reasonable

degree of rational understanding about them.

1 Cases that cite this headnote

1 Cases that cite this headnote

[2] Mental Health

Mental Disorder at Time of Trial [6] Mental Health

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1

Turner v. State, --- S.W.3d ---- (2013)

Mental Disorder at Time of Trial Const.Amend. 14; Vernon's Ann.Texas C.C.P.

A defendant's mental illness plus his failure to art. 46B.004.

communicate with counsel will invariably or

2 Cases that cite this headnote

necessarily add up to a finding of incompetence

to stand trial.

[10] Criminal Law

Cases that cite this headnote Doubt as to Competency; Reasonable

Cause or Grounds

[7] Mental Health Trial court was not required to conduct a formal

Mental Disorder at Time of Trial competency trial following initial evaluations

Neither the fact that a defendant is mentally ill by psychologist and psychiatrist in prosecution

nor that he obstinately refuses to cooperate with for intentional murder of defendant's wife

his trial counsel by itself mean he is incompetent and mother-in-law during the same criminal

to stand trial. transaction, where psychologist and psychiatrist

deemed him to be competent, and trial counsel

Cases that cite this headnote made no request at the time for a formal

competency trial. Vernon's Ann.Texas C.C.P.

art. 46B.004.

[8] Criminal Law

Doubt as to Competency; Reasonable 1 Cases that cite this headnote

Cause or Grounds

In determining whether some evidence from any

[11] Criminal Law

source of defendant's incompetency to stand trial

Successive Proceedings in General

had arisen by the time of informal competency

inquiry, trial court must consider only that Approximately one month after initial

evidence tending to show incompetency, putting evaluations by psychologist and psychiatrist

aside all competing indications of competency, finding defendant competent to stand trial, there

to find whether there is some evidence, a quantity was at least some evidence that supported

more than none or a scintilla, that rationally may a rational finding that defendant lacked the

lead to a conclusion of incompetency. Vernon's capacity to engage with his trial counsel

Ann.Texas C.C.P. art. 46B.004(c). rationally or to make rational choices with

respect to his legal strategies and options and,

3 Cases that cite this headnote thus, formal competency trial was warranted in

prosecution for intentional murder of defendant's

wife and mother-in-law during the same criminal

[9] Constitutional Law

transaction, which was a capital offense, where

Necessity; Right to Hearing

defendant threatened his attorney with physical

Criminal Law

violence over disagreement with strategy to

Successive Proceedings in General

depose defendant's children, defendant was upset

Should the formal competency trial result in that trial counsel was not pursuing defendant's

a finding of competency, the trial court is apparently delusional and clearly irrelevant

not obliged to revisit the issue later, absent a defense that the mayor had sired his youngest

material change of circumstances suggesting that child, and defendant's paranoia had progressed to

the defendant's mental status has deteriorated; the point that he believed that his attorneys were

however, especially when there has been a openly conspiring with the prosecutors to secure

suggestion of incompetency, but no formal his conviction. Vernon's Ann.Texas C.C.P. art.

adjudication of the issue, due process requires 46B.004.

the trial court to remain ever vigilant for

changes in circumstances that would make Cases that cite this headnote

a formal adjudication appropriate. U.S.C.A.

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Turner v. State, --- S.W.3d ---- (2013)

offense. 1 The jury answered the statutory special issues in

[12] Criminal Law

such a way that the trial court was required to assess the death

Conduct of Trial or Hearing

penalty. 2 Direct appeal is automatic in this Court. 3

To the extent that the defendant's disastrous

decision to testify was the product of a conflict

The appellant does not challenge the sufficiency of the

with trial counsel that derived from a paranoid

evidence to support either his conviction or death sentence. In

pathology, it was constitutionally intolerable in

fourteen of his twenty-four points of error, he claims that he

prosecution for intentional murder of his wife

was incompetent to stand trial, or that the trial court should

and mother-in-law during the same criminal

at least have paused the proceedings at various stages of trial

transaction, which was a capital offense, and,

to conduct a formal competency hearing, as his trial counsel

thus, a formal competency trial that could

have ruled out that substantial possibility before repeatedly requested. 4 In order to address these various

proceeding to trial on the indictment was points of error adequately, we must undertake a detailed

warranted, where defendant took the witness recitation of certain events transpiring before and during trial.

stand against the advice of counsel, he proceeded

to testify at odds with the defensive posture of

his lawyers based upon a wholesale denial of COMPETENCY TO STAND TRIAL

responsibility that was worse than implausible,

which opened the door for the prosecutors The evidence at trial showed that, just after midnight on

to expose the irrationality of his account on December 27, 2009, the appellant entered the home of his in-

cross-examination and then to highlight, at both laws and killed his wife, Keitha Turner, and his mother-in-

the guilt and punishment phases of trial, that law, Betty Jo Frank, cutting their throats while his three young

his willful refusal to acknowledge blame was children were present in the house. 5 Although we find no

nothing but a clear signal of his enduring indictment in the clerk's record, the docket sheet indicates that

threat to society. Vernon's Ann.Texas C.C.P. art. on March 3, 2010, Ralph Gonzalez was appointed to represent

46B.004. the appellant, that a grand jury indicted the appellant for

capital murder on April 5, 2010, and that, on May 17, 2010,

Cases that cite this headnote

Gonzalez filed a motion to have the appellant evaluated for his

competency to stand trial. The trial court immediately granted

that motion, and the appellant was promptly evaluated by

two forensic mental-health experts: psychologist Dr. Karen

Attorneys and Law Firms Gollaher and psychiatrist Dr. David Axelrad.

Gail Kikawa McConnell, Assistant District Attorney,

Richmond, TX, for Appellant.

I. The Facts

Robert A. Morrow, Attorney at Law, The Woodlands, TX,

Lisa C. McMinn, State's Attorney, Austin, for the State.

A. The Initial Competency Reports

Opinion

Dr. Gollaher conducted the first evaluation on May 18th and

19th, 2010. In her report, Gollaher notes that the appellant

OPINION “reported the belief that his wife had been having an affair

for many years with the Mayor of Kendleton, Texas [,]” but

PRICE, J., delivered the opinion of the Court in which

that “she had repeatedly denied any extramarital relationship,

WOMACK, JOHNSON, COCHRAN, and ALCALA, JJ.,

calling him paranoid.” Gollaher also noted that the appellant's

joined.

recent jail records “appear to refer to possible delusional

*1 The appellant was convicted of the intentional murder of thinking[.]” While the appellant denied any such delusional

more than one person during the same criminal transaction, thinking during the evaluation, Gollaher nevertheless noted

namely, his wife and his mother-in-law, which is a capital “several statements” that he made to her “that raise[d] the

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Turner v. State, --- S.W.3d ---- (2013)

possibility of paranoid thinking.” Moreover, “he reported the had not yet seen the experts' competency reports, he had

jail psychiatrist prescribed him Risperdal but he has not taken been told that Gollaher deemed the appellant competent to

his medications because he does not believe he needs it.” 6 stand trial and that Axelrad had found him to be “perfectly

Gollaher did not diagnose the appellant as suffering from any fit.” Even so, Gonzalez informed the trial court that “[w]e're

particular thought disorder. She did not believe his possible having difficulty with [the appellant] accepting a lot of

paranoid thoughts would “undermine his ability to participate things that happened. And one of the biggest things is his

in the court procedures.” She also concluded that the appellant family, his children. There is a little bit of disconnect right

was “capable of communicating events in an understandable now.” Nevertheless, the appellant's counsel did not request

manner and can report his state of mind.” It was her ultimate any further proceedings at this time with respect to his

professional opinion that the appellant was, as of that time, competency to stand trial.

competent to stand trial.

More than four months later, on November 9, 2010, counsel

*2 Dr. Axelrad evaluated the appellant a month later, for the appellant filed a notice of intent to take the depositions

on June 14, 2010, also ultimately concluding that he was of two of the appellant's children. On November 22, 2010, in

open court, at the beginning of a hearing on pretrial motions,

competent to stand trial. In his report, 7 however, Axelrad

the appellant personally informed the trial court that he had

acknowledged that the appellant “is an individual who may

filed a grievance against his lawyers and wanted a new

have a mental illness and the diagnosis may be a paranoid

“defense team” appointed. He complained that he did not

disorder.” Although he did not note any impairment in the

wish to have his children deposed and that his lawyers had

appellant's thought process or content, he nevertheless found

not explained to him the purpose behind the various pretrial

the appellant to be “mildly impaired” in his abilities: 1) to

motions on file. Defense counsel denied that they had failed

disclose to counsel pertinent facts, events, and states of mind;

to explain the motions and asserted that they needed to depose

2) to engage in a reasoned choice of legal strategies and

the children to obtain discovery and for other undisclosed

options; and 3) to engage with counsel. From the recent

purposes in the service of their client's best interests. The trial

jail records, Axelrad noted that the attending psychiatrist

court denied the appellant's request for new lawyers.

had found the appellant to be “exhibiting some paranoid

ideation, and he does appear to be delusional.” The appellant

*3 Another ex parte conference occurred in chambers on

also exhibited “some paranoid ideas” and “mild paranoid

functioning” during Axelrad's evaluation. The appellant December 10, 2010, 8 the same day that the deposition of the

reported to Axelrad that he had “lost confidence in his appellant's children was originally scheduled. The appellant's

attorney, and [he did] appear to have significant problems counsel revealed that the relationship between the appellant

in his relationship with his current attorney, Mr. Gonzalez.” and Gonzalez had deteriorated to the point that the appellant

The appellant would not discuss the circumstances of the had physically threatened Gonzalez. Gonzalez related:

offense with Axelrad; consequently, Axelrad was “unable

In my thirty years, I've been threatened

to address, at this time, as to whether [the appellant] had a

on several occasions but never as

paranoid disorder. In the event he has a paranoid disorder,

adamantly and never [as] menacingly

this may be contributing to the problems he is experiencing

as this guy. I believe that no matter

with his attorney.” With this caveat, Axelrad concluded that

what I tell him, if I could tell him

the appellant was nonetheless competent to stand trial—and

that he would be getting out of jail

even that he was competent “to enter into plea negotiations

tomorrow and nothing would happen

concerning his alleged offense in the event that he and his

to him, he would not believe me. There

attorney can develop an effective working relationship.”

is nothing that I can do to convince that

man that I have anything of benefit to

do for him or that I can do for him.

B. Pretrial Proceedings

Because the attorney/client relationship had become so

The first pretrial hearing on record was an ex parte conference “untenable,” Gonzalez filed a motion to withdraw. That same

that took place in chambers on June 23, 2010. By this day, in open court, the appellant personally reiterated that

time the trial court had appointed a second attorney, Pat he was “opposed to the depositions” of his children and did

McCann. Gonzalez reported to the trial court that, while he not “want Mr. Gonzalez on my case.” The trial court granted

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Turner v. State, --- S.W.3d ---- (2013)

Gonzalez's motion to withdraw. Because Gonzalez had been rest of the Defense team are working with the State to ensure

the member of the defense team who had prepared to conduct his conviction, we may need to revisit competency at some

the depositions, they were rescheduled. On December 14, point with you.” The trial court responded that “we can do a

2010, the trial court appointed Tyrone Moncriffe to replace competency exam while we are doing the voir dire.”

Gonzalez and, on January 5, 2011, the trial court granted the

defense a trial continuance until April 18, 2011, with final

pretrial motions to be heard on April 11, 2011, in order to give

C. Voir Dire

Moncriffe sufficient time to familiarize himself with the case.

Voir dire was set to commence the next week, on April

The April 11th hearing began with a renewal of the appellant's 18, 2011. In the interim, McCann filed a “Motion for a

efforts to replace his trial counsel. The trial court had received Contested Competency Hearing.” Attached to this motion

“letters” by fax from a woman purporting to be the appellant's were an affidavit from Moncriffe, dated April 7, 2011,

sister that asked the trial court to “fire[ ]” the appellant's and a competency evaluation from a neuropsychologist,

trial counsel. Because the faxed copies of the letters did Dr. Shawanda Williams–Anderson, dated April 12, 2011.

not bear his signature, however, the appellant refused to Moncriffe explained that it was part of the defensive strategy

“endorse” them as his. The trial court therefore declined to depose the appellant's children and then agree for the State

to “take them up[.]” McCann told the trial court that “we to use the deposition testimony in lieu of live testimony at

are doing everything possible to prepare for this trial; but trial, since, in their estimation, “the impact of [the appellant's]

[the appellant] has not agreed to speak with us on many children describing their mother and grandmother's horrible

occasions[.]” [deaths] was much more damaging live than by deposition.”

Accordingly, McCann had conducted the depositions on

Later during the same pretrial hearing, the trial court returned April 1, 2011, while Moncriffe and the appellant watched by

to the issue of the appellant's displeasure with his trial video link from an adjoining room. The appellant watched

counsel, directly asking the appellant whether he wished to with “a bewildered look on his face.” Afterwards, he yelled

represent himself. The appellant unequivocally responded, at his lawyers, accusing them of making his children testify

“No.” He complained, however, that trial counsel “have not against him, in conspiracy with the District Attorney. “He

shown me any evidence.” He acknowledged that they had cannot assist his defense team,” Moncriffe concluded, “nor

played for him a recording of the 911 call in which his does he have a rational understanding of the magnitude of

daughter had reported the murders, but he complained that these proceedings. He seems to have one train of thought

he had not been able to hear it. McCann answered that the and he disregards all other rational thoughts completely.”

appellant had been provided everything except for the actual Dr. Williams–Anderson evaluated the appellant on April 12,

physical evidence, including offense and autopsy reports, 2011. She concluded that, “[b]ecause of the seriousness of

and that, not only had the appellant been able to hear the [the appellant's] charges, his unwillingness to participate in

911 recording, it had made him weep. McCann agreed to his defense, and his extreme distrust of every member of his

make all the evidence available for the appellant again. The team, his competency to stand trial is questionable.”

appellant then complained that his lawyers had not contacted

the Mayor of Kendleton or conducted any paternity testing At a hearing on the motion for a formal competency hearing,

to determine whether the Mayor was the real father of the which convened on April 18th, the first day of voir dire,

appellant's youngest child. McCann explained that they had in McCann argued that the appellant's “paranoia has grown

fact interviewed the Mayor but that the result of any paternity to the level of delusions[.]” “It's become an issue to the

testing was, in any event, “sadly not legally relevant.” The point where [the appellant] actively appears to believe that

trial court informed the appellant that it would not remove we are working against his own interests, and the delusion

trial counsel from the case and suggested that he “start seems complete and full-blown.” McCann explained that the

cooperating with them.” appellant's

*4 Later that same day, another ex parte conference took attitude has gotten worse in the last

place in chambers. McCann informed the trial court that several weeks, that we have spent

“we're going to attempt to go speak with him; but at some numerous hours with [him] over the

point, based upon his clear paranoia that somehow I and the last several days since the hearing on

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Turner v. State, --- S.W.3d ---- (2013)

the 11th; and we have all come to the status has changed since the last time a competency hearing

conclusion that at this point he is— occurred.” 10 Afterwards, “I'll do an initial evaluation about

although he interacts with us on this whether [the appellant's] status has changed.” Accordingly,

plane of reality, he frankly is thinking the trial court ordered Dr. Connie Almeida, a licensed

and living in another one that does clinical psychologist and Director of the Fort Bend County

not appear to comport with either the Behavioral Health Services, to evaluate the appellant, with

evidence we've shown him, our views an emphasis on whether he was “able to rationally assist his

of the case, or anything that we can lawyers in the defense of his case.”

determine as a group as rational.

Dr. Almeida filed a report on May 19, 2011, and appeared

*5 Responding to the prosecutor's argument that simple

at a hearing the next day, on May 20th. She testified that the

disagreement between a lawyer and his client does not raise

appellant would not cooperate with her several attempts to

an issue of competency, and the trial court's request that

evaluate him, and that the best she could do was to report her

McCann “focus on the fact that we've already conducted the

impressions from a half-hour conversation she had managed

competency evaluation in this case[,]” McCann asserted:

to have with him on May 17, 2011, during which “[h]e did

I have defended serial killers and express disagreement with some of the strategies and ‘tactics'

people who have killed their whole of his defense team.” As of that date, the appellant was not

families, and this case is challenging taking any psychotropic medications, nor did the behavioral

even my ability to ... see how this health staff at the jail deem such medications presently

could not be originating from anything warranted. From all this, Almeida was unable to draw any

but mental illness. * * * It has conclusions about the appellant's competency to stand trial.

now gotten to a place ... where [the But she believed there to be “no significant changes in his

appellant's] version of the reality of functioning” since he was initially evaluated for competency

the facts that he deals with day-to-day, by Drs. Gollaher and Axelrad the previous summer. She could

whatever evidence is shown, whatever not say “definitively” that the appellant was not paranoid.

discussions we have, comes from a

place of such deep rooted paranoia that *6 On cross-examination by the prosecutor, Almeida opined

I can no longer believe it is simply a that, “based on my limited interaction with him, I would say

difficult person that I'm dealing with. that he would have a rational and factual understanding of

the proceedings against him.” 11 She also acknowledged an

Given the competency evaluations that had already been observation she had made in her written report that “there

conducted by Drs. Gollaher and Axelrad, the trial court is no current evidence to substantiate a delusional or other

found that what Dr. Williams–Anderson characterized as psychiatric disorder.” Nor was she aware of “any behaviors

the appellant's simple “unwillingness to participate in that warrant a psychiatric intervention” since the appellant

his defense” provided insufficient grounds to conduct a had been jailed. She nevertheless stood by her position that

competency hearing, and it therefore denied the motion. she was unable to reach a determination of her own whether

the appellant had a present ability to assist his counsel, as

McCann broached the subject of competency again about a the trial court had requested. The best she could say was

week into voir dire when, on April 26, 2011, he complained that she perceived “no significant changes in [his] emotional

that, “although I have attempted to engage with my client in or cognitive functioning since” the earlier evaluations that

regards to his opinions, for whatever reason, it appears to have would adversely impact his competency to stand trial.

been shut down.” He urged the trial court take up his motion

for a competency hearing again. The trial court advised him After hearing argument from the parties, the trial court

to file a new motion with accompanying affidavit. McCann denied the motion for a formal competency hearing. While

apparently did, 9 because a renewed hearing was held on acknowledging that Drs. Gollaher and Axelrad had made

April 27, 2011. While persisting in its refusal to order a “notation of paranoia” in their initial competency reports,

formal competency hearing, the trial court at this time decided the trial court observed that they had not found the

“to direct the Court's behavioral mental health director to appellant's paranoia to be “sufficient to meet the statutory

do an evaluation to determine whether [the appellant's] guidelines” for incompetency. The trial court opined that

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Turner v. State, --- S.W.3d ---- (2013)

the appellant's evidence of incompetence, measured against narrow his inquiry, McCann asked the appellant whether he

those “statutory guidelines,” “does not call for secondary had something to tell the jury about the night of the murders.

competency evaluations unless there's a clear change in [the After some additional wrangling, the appellant was allowed

appellant's] whole aspect that raises a clear concern.” The to describe in narrative fashion what he had done during

only such change that the trial court could see was the the day of December 26, 2009, before the murders. As his

appellant's “failure to cooperate with [counsel] and that's his narrative approached the time of the murders, however, the

choice to make [.]” Even so, the trial court believed this had trial court directed McCann to ask another question. At a

been enough to justify appointing Almeida, in an abundance bench conference, McCann explained that he was ethically

of caution, “to explore this area to see if there was such constrained from asking more specific questions, and the

a change that it would require a full competency hearing.” prosecutor speculated that McCann “can't do it because he

Although Almeida was unable to reach a conclusion whether knows it's a lie.” 12 McCann was then allowed to ask the

the appellant's failure to cooperate with his counsel rendered appellant whether he had “something else [he] wanted to

him incompetent, the trial court reasoned, her inability was add[.]” At that point, the appellant vehemently denied having

itself the product of the appellant's choice not to talk to her ever “put [his] hands on [his] wife[,]” and claimed that his

about his case. “That is a reasoned decision on his part. Does daughter had said as much during a portion of her deposition

it reach to the level of incompetency, there's nothing to show testimony “that y'all recorded over.” When the prosecutor's

today that it does that.” hearsay objection was sustained, McCann asked the appellant

to describe the events after December 27th, and the appellant

was once again allowed to narrate. He was not specifically

D. Trial on the Merits asked on direct examination about the killings themselves.

Trial on the merits began on May 25, 2011. During opening On cross-examination, the appellant denied having threatened

statements, McCann informed the jury that the defense his first attorney, Gonzalez. He claimed that Gonzalez

expected the evidence to show that the appellant killed his withdrew from the case because the appellant had tried to put

wife in a “jealous rage,” but that the killing of his mother- a stop to the depositions of his children. The appellant further

in-law, with whom the appellant had always gotten along, maintained that his children were coerced into giving the

occurring in the close quarters of the upstairs hallway, deposition testimony against him. At this juncture, McCann

had not been perpetrated intentionally—that the appellant, renewed his motion for a competency examination, but the

while certainly guilty of “two terrible horrible crimes[,]” trial court denied it, observing that “[t]here's nothing that

was not guilty of a capital offense. Along the way, McCann I have been shown that changes anything that I have been

explained to the jury that the appellant “doesn't like me shown before.” The appellant next denied that his attorneys

very much.” Later, he observed: “And if you look at him were “trying to save [his] life[.]” When the prosecutor asked

there, he's a large man, as he sits there scowling at me. the appellant whether McCann had been misleading the jury

Because he can't admit what he did, to himself or anybody panel during his opening statement, the following transpired:

else.” The ensuing defensive strategy was to acknowledge

that the State's evidence showing that the appellant was A I asked him, before he made his statement, what—what I

responsible for the two murders was at least substantial, if not was curious about what exactly was he going to make in his

overwhelming, but to try to engender a reasonable doubt in opening statement. And the reason I said that—the reason

the jurors' minds whether he harbored the requisite culpable I asked that question is because that we weren't talking.

intent with respect to the death of his mother-in-law to satisfy They weren't coming to see me. They didn't want to hear

the statutory criteria for a capital offense. anything I had to say about the things that I was saying

about the mayor and all the allegations that I was saying.

*7 On May 27th, the Friday before Memorial Day, the They wouldn't investigate it. They kept bringing me—I

appellant exercised his right to testify in his own behalf, have proof of everything that I'm saying.

against the advice of counsel. After having the appellant

Q Do you know they talked to the mayor?

identify photographs of his children, wife, and mother-in-law,

McCann simply asked him whether there was “something A That's what they told me.

you would like to tell this jury[.]” The prosecutor objected

that the question called for a narrative response. Instructed to Q I know. Everybody did.

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Turner v. State, --- S.W.3d ---- (2013)

*8 A And I've, you know—I looked at the thing. He was They have seriously neglected my case. They have ignored

obviously lying. the information I have provided them for my defense.

Witnesses for my defense haven't been contacted that I've

Q Do you know these two gentlemen have tracked given them.

everything you have ever said down?

He made up—he came up with an opening statement when

A No. I had—signed an affidavit or even told him that I—that I

killed anyone. So where did he get this opening statement

Q And it comes to one conclusion: You killed those two

from, that it's an accident? He has not defended me.

women.

McCann reminded the trial court that he had recently

A I didn't kill anyone.

renewed his request for a competency hearing based upon the

Q And they're trying to save your life. You understand that? appellant's paranoia. Directed to respond specifically to the

appellant's complaints, McCann replied:

A I didn't kill anyone.

We have, during the course of this investigation—Without

The appellant further testified that his daughter had made a going into too much client confidence, Mr. Turner has

mistake to identify him as the killer. He explained that he fled indicated that there were entourage members of the mayor

the state after the killings because the Mayor had threatened of Kendleton who might fit his description as well as other

him and had sent two unidentified men to break into his individuals whom he might have hired who was part of

house. Asked whether his lawyers were part of this apparent his hang-around crew. We have found no such individual

“conspiracy” against him, the appellant replied that they were who would refute the 100 percent-certain eyewitness

not “going out and getting the evidence that I was talking identification of his own children during the incident.

about, and I was wondering why.” The prosecutor wrapped

up his cross-examination of the appellant by asking him: THE COURT: Mr. Turner testified that he was afraid of

certain individuals and indicated that that was part of the

Q All right. Let me ask you this way: Is there any way, Mr. reason why he fled. Did you pursue that investigation?

Turner, you want to change any of your story right now

and beg for forgiveness from this jury at all? *9 MR. MCCANN: We have located no such individuals,

either as a friend of the mayor of Kendleton nor any

A I didn't kill anyone. indication that the mayor of Kendleton was anywhere near

his home on the night that he mentioned, nor that he has any

Q I know. Do you know how dangerous that makes you? proclivity or, indeed, any real relationship with his wife.

That doesn't mean that Mr. Turner didn't think that there

McCann's objection was sustained, but his motion for mistrial

was one, but at the same time, we found no such indication.

was denied. On redirect, McCann simply asked:

THE COURT: Mr. Turner has raised the issue that you

Q Mr. Turner, in your mind, all that drivel was true, wasn't

have not pursued the theory that it was an accident. Would

it?

you respond to that allegation?

A It is true.

MR. MCCANN: I understood him to mean that he rejected

Shortly after, the defense rested and both sides closed. the theory that it was an accident because his testimony

indicated he was not there. The only plausible defense that

On Tuesday, May 31st, the morning that final arguments for Mr. Moncriffe and I could see coming from the evidence

the guilt phase were set to begin, the appellant unequivocally that we examined is that the second killing—while the first

announced that he was “firing my defense team and killing may have been an act of passion between a jealous

representing myself. I should be able to represent myself at husband and wife, the second killing would appear to have

any stage of this trial. I have that right.” 13 When the trial been unintended. At least there was no indication of any

court asked why, the appellant asserted: quarrel or violence between Mr. Turner and Betty Jo.

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Turner v. State, --- S.W.3d ---- (2013)

*10 [1] [2] A criminal defendant who is incompetent may

And given the circumstances and the placement of the

not be put to trial without violating due process. 16 “It has

second floor, it is conceivable that he did not intend

long been accepted that a person whose mental condition is

that killing and that killing was, in fact, either accidental

such that he lacks the capacity to understand the nature and

or perhaps done in a reckless manner that would have

object of the proceedings against him, to consult with counsel,

indicated a lesser charge might be available or that we

and to assist in preparing his defense may not be subjected to

could argue plausibly that that killing was not intentional.

trial.” 17 The constitutional standard for competency to stand

Based upon these representations, the trial court summarily trial asks whether the defendant has a sufficient present ability

denied the appellant's demand to “fire” his trial counsel and to consult with his lawyer with a reasonable degree of rational

represent himself. Closing arguments began soon after. understanding and whether he has a rational as well as factual

understanding of the proceedings against him. 18 Due process

The prosecutors used their opening remarks to highlight the also mandates state procedures that are adequate to assure that

appellant's claim that his children had mistakenly identified

incompetent defendants are not put to trial. 19 To that end,

him and to pound away at his failure to take responsibility. 14 our statutory scheme has codified the constitutional standard

For his part, McCann described the appellant's behavior this for competency to stand trial and has elaborately described

way: the circumstances that require, and procedures for making, a

determination of whether a defendant is competent to stand

When I got up and talked to you

in opening, I told you that my trial. 20

client, Albert James Turner, still hasn't

accepted what happened because on

that night, he snapped. You actually A. Substantive Standard

got to watch what he thinks is the truth

because he literally cannot accept what The Texas Legislature has adopted the constitutional standard

happened. In his mind, very sadly, it is for competency to stand trial in Article 46B.003(a) of the

the truth. Texas Code of Criminal Procedure. 21 The appellant in this

case does not contend that he lacked at least a factual

He then went on to urge the jury nevertheless to accept the

understanding of the proceedings against him. There is

defensive theory that the appellant had not intended to kill his

no reason to doubt that he understood that his life and

mother-in-law and, on that account, to find him not guilty of

liberty were at stake and what roles the various participants

capital murder.

in the proceedings played. At issue is whether there was

any substantive indication that he lacked either a rational

The State argued in response that the wound inflicted on

understanding of the proceedings or a present sufficient

the appellant's mother-in-law was too severe to justify a

ability to consult with counsel with a reasonable degree of

finding that it was not intentionally inflicted. Along the way,

rational understanding—or, as the trial court in this case

the prosecutor once again emphasized the absurdity of the

ordered Dr. Almeida to assess, whether he was “able to

appellant's testimony, reminding the jury that even McCann

rationally assist his lawyers in the defense of his case.”

had characterized his story as “drivel.” Later, during their

closing arguments at the punishment phase of trial, the State

[3] The Legislature apparently regards a defendant's

similarly relied upon the appellant's implausible guilt-phase

capacity to rationally assist in the preparation and execution

testimony to argue that the remorselessness he displayed

of his defense to be indispensable to a defendant's competency

in the courtroom and from the witness stand constituted

to stand trial. We may infer this from the fact that it

compelling evidence that should convince the jury that he

has directed that forensic psychologists and psychiatrists

would constitute a future danger to society. 15 appointed by the trial court to perform competency

evaluations should specifically consider, among other things:

1) the defendant's “capacity ... during criminal proceedings

II. The Law to ... engage in a reasoned choice of legal strategies and

options;” as well as 2) “the impact of the mental illness or

mental retardation, if existent, on the defendant's capacity to

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Turner v. State, --- S.W.3d ---- (2013)

engage with counsel in a reasonable and rational manner Under our current statutory scheme, 29 any “suggestion”

22

[.]” These legislative criteria for competency contemplate of incompetency to stand trial calls for an “informal

a defendant who is at least minimally able to interact with his inquiry” to determine whether evidence exists to justify a

trial counsel in a “reasonable and rational” way (even if they formal competency trial. 30 In 2009, this Court held that

do not necessarily agree) in formulating decisions how most evidence that a “suggestion” of incompetency sufficient to

effectively to pursue his defense. trigger an informal inquiry was the same as the bona fide

doubt standard from the previous statutory regime. 31 The

[4] [5] Other jurisdictions have construed the

Legislature has subsequently rejected the bona fide doubt

constitutional standard for competence to stand trial

standard for purposes of Article 46B.004, but the amendment

consistent with this understanding. Various courts have

by which this was accomplished did not become effective

declared defendants to be incompetent under the

until September 1, 2011, several months after the appellant's

constitutional standard upon findings that they suffered from

mental illnesses causing paranoid delusions that impacted trial. 32 In any event, here, at least as of May 20, 2011, when

their perception of reality in ways that adversely affected voir dire was interrupted for the hearing at which Dr. Almeida

their ability to rationally comprehend the proceedings against testified, the trial court was obviously persuaded that a bona

fide doubt did exist as to the appellant's competency.

them or interact rationally with trial counsel. 23 And we

think there is particular cause for concern when a defendant's

[8] The question therefore becomes whether, in light of

mental impairment directly touches upon certain fundamental

what became known to the trial court by the conclusion

decisions that the criminal justice system reserves for him to

of this informal inquiry, it should have conducted a formal

make personally—albeit after “engaging” meaningfully with

competency trial. The answer depends upon whether “some

counsel—such as whether to testify in his own defense. 24 evidence from any source” had arisen by that time “that would

Precisely because the defendant retains ultimate authority support a finding that [the appellant] may be incompetent to

over these decisions, it is critical that he be able “to

stand trial.” 33 In making this determination, a trial court must

consult with counsel with a reasonable degree of rational

consider only that evidence tending to show incompetency,

understanding” about them. 25 “putting aside all competing indications of competency, to

find whether there is some evidence, a quantity more than

*11 [6] [7] This is not to imply that a defendant's mental none or a scintilla, that rationally may lead to a conclusion

illness plus his failure to communicate with counsel will

of incompetency.” 34 If so, then “evidence exists to support a

invariably or necessarily add up to a finding of incompetence.

finding of incompetency,” and the statutory scheme requires

The fact that a defendant is mentally ill does not by itself

the trial court to conduct a formal competency trial. 35

mean he is incompetent. 26 Nor does the simple fact that

he obstinately refuses to cooperate with his trial counsel. 27 [9] [10] Should the formal competency trial result in

Indeed, even a mentally ill defendant who resists cooperating a finding of competency, the trial court is not obliged

with his counsel may nevertheless be found competent if the to revisit the issue later absent a material change of

manifestations of his particular mental illness are not shown circumstances suggesting that the defendant's mental status

to be the engine of his obstinacy. 28 But when a defendant's has deteriorated. 36 However, especially when there has been

mental illness operates in such a way as to prevent him a suggestion of incompetency but no formal adjudication

from rationally understanding the proceedings against him or of the issue, due process requires the trial court to remain

engaging rationally with counsel in the pursuit of his own best ever vigilant for changes in circumstances that would make

interests, he cannot be made to stand trial consistent with due

a formal adjudication appropriate. 37 In the instant case, we

process. Evidence that raises this possibility necessitates an

find no fault in the trial court's failure to conduct a formal

informal inquiry, and if that inquiry reveals that the possibility

competency trial following the initial evaluations by Drs.

is substantial, a formal competency trial is required.

Gollaher and Axelrad, since they deemed the appellant to be

competent. After all, the appellant's trial counsel made no

request for a formal competency trial at that time. But as of

B. Procedure May 20, 2011, when the trial court concluded its informal

inquiry, there was some evidence to support a rational finding

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Turner v. State, --- S.W.3d ---- (2013)

of incompetence, and, for the reasons that we describe below, seems to have one train of thought and he disregards all other

the appellant's request for a formal competency trial should rational thoughts completely.” The appellant's paranoia had

then have been granted. progressed to the point that, if the representations of his own

lawyers are to be credited, he believed that they were openly

conspiring with the prosecutors to secure his conviction. He

flatly refused to communicate with them during the voir dire

III. Analysis

proceedings.

*12 Shortly after indictment in April of 2010, and before

the appellant was afforded much of an opportunity to interact We think the preceding information constitutes at least

with Gonzalez, his first-appointed trial counsel, both Dr. some evidence that would support a rational finding that

Gollaher and Dr. Axelrad deemed him competent to stand the appellant lacked the capacity to “engage” with his trial

trial. The record does not show that the appellant had a history counsel rationally or to make rational choices with respect

of mental illness. Nevertheless, both of the competency to his legal strategies and options. In finding otherwise at

reports reflect the substantial possibility that he was suffering the conclusion of the informal inquiry on May 20, 2011, the

from paranoia that may have been the product of “a paranoid trial court made two mistakes. First, the trial court focused

disorder,” and that he was apparently exhibiting delusions. erroneously on evidence of competency rather than evidence

Gollaher expressly found that the appellant had a factual of incompetency, relying upon the ultimate conclusions

understanding of the proceedings and could “communicate of Drs. Gollaher and Axelrad, as well as Dr. Almeida's

events in an understandable manner and can report his subsequent opinion that the appellant's cognitive functioning

state of mind.” But her report did not speak specifically to had not significantly changed in the interim. But Almeida

whether his condition would adversely affect his capacity was unable to say that the appellant was competent to

either to “engage with counsel in a reasonable and rational assist counsel in his defense, and both Gollaher and Axelrad

manner[,]” or to “engage in a reasoned choice of legal observed signs of paranoid delusions that would at least

minimally support a finding that the appellant suffered from

strategies and options[.]” 38 Axelrad's report did speak to

a mental disorder that impaired his ability to participate

those capacities and, in fact, he found the appellant to

rationally in the preparation and presentation of his defense.

be “mildly impaired” with respect to both. Axelrad noted

The interactions between the appellant and his trial counsel in

that, “[i]n the event [that the appellant] has a paranoid

the intervening months constituted substantial evidence that

disorder, this may be contributing to the problems he is

Axelrad's nascent concerns about the appellant's capacity to

experiencing with his attorney.” Notwithstanding the experts'

consult rationally with his attorneys were subsequently borne

ultimate conclusions that the appellant was competent, the

out. There was some evidence that would rationally support a

trial court was effectively put on notice of the need to maintain

finding of incompetency to stand trial, notwithstanding other

vigilance to assure that the appellant's due process rights were

evidence to the contrary.

preserved.

*13 [12] Second, the trial court erred to the extent that it

[11] Barely over a month after the initial evaluations,

denied the appellant's request for a formal competency trial

the appellant's attorneys were already experiencing “a little

on the grounds that the appellant failed to demonstrate any

bit of a disconnect” with him. By November of 2010, the

“change” of status since the earlier findings of competency

appellant had filed a grievance against his lawyers and

by Gollaher and Axelrad. There was no adjudication of

requested a new “defense team.” In December, Gonzalez's

the competency issue in the summer of 2010 following

continued representation of the appellant became “untenable”

their evaluations—not even an informal inquiry to decide

after the appellant threatened him with physical violence

whether there was sufficient evidence at that time to invoke

over their disagreement with the defense strategy to depose

a formal competency trial. Thus, there was no prior judicial

the appellant's children. By April of 2011, it began to

competency determination to justify a requirement of a

emerge that the appellant's displeasure with trial counsel

change in circumstances. Moreover, even had there been

involved more than the depositions alone; he was also upset

some previous judicial finding of competency, the trial court

that trial counsel were not pursuing a sufficiently vigorous

was mistaken to conclude that no new circumstances existed

investigation into his apparently delusional—and, in any

to merit a second look. By May of 2011, there had arisen new

event, clearly irrelevant—claim that the Mayor of Kendleton

evidence in the form of the appellant's obviously irrational

had sired his youngest child. According to Moncriffe, “He

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Turner v. State, --- S.W.3d ---- (2013)

belief that his ongoing delusion with respect to the Mayor erred in failing to grant the appellant's request for a formal

of Kendleton somehow provided him with a defense to competency trial under Article 46B.005.

prosecution for capital murder that was preferable to the

approach that his trial lawyers urged him to pursue. That

the appellant persisted in this delusion-fueled belief against

DISPOSITION

the emphatic advice of counsel, together with the earlier

suggestions that he suffered from a paranoid disorder, was Accordingly, we sustain the appellant's ninth point of error,

enough to raise the likelihood of incompetency to a level abate the appeal, and remand the cause to the trial court.

beyond that which is evinced by a mere dispute between On remand, the trial court shall first determine whether it

an ordinarily obstinate defendant and his legal counsel over is presently feasible to conduct a retrospective competency

plausible trial strategies. It is at least some evidence to support trial, given the passage of time, availability of evidence,

a rational finding that, because of mental illness, the appellant

and any other pertinent considerations. 42 Should the trial

was unable to engage rationally with his lawyers and was

court deem a retrospective competency trial to be feasible,

therefore incapable of participating rationally in his own

it shall proceed to conduct such a trial in accordance

defense. 39 Most critically, he may well have been incapable with Chapter 46B, Subchapter C, of the Code of Criminal

of making a rational, non-delusional decision with respect

Procedure. 43 Regardless of whether the trial court deems a

to whether or not to accept his trial counsel's advice not to

retrospective competency trial to be feasible, the record of the

testify. 40 proceedings on remand shall then be returned to this Court for

reinstatement of the appeal. 44

We hasten to emphasize the limited scope of our holding

today. This is not a case in which there is some evidence of

mental illness but no evidence from which it may reasonably

be inferred that the defendant's mental illness renders him KELLER, P.J., filed a dissenting opinion in which MEYERS,

incapable of consulting rationally with counsel. Nor is it KEASLER, and HERVEY, JJ., joined.

a case in which there is some evidence that the defendant

KELLER, P.J., filed a dissenting opinion in which MEYERS,

obstinately refuses to cooperate with counsel but nothing

KEASLER and HERVEY, JJ., joined.

from which to rationally infer that his obstinacy is fueled

*14 Appellant, who has no history of mental illness,

by mental illness. It is not even a case in which there is

understands what he is accused of and the nature of the

some evidence of mental illness, some evidence of obstinacy,

proceedings, and he understands who his attorneys are and

but ultimately no rational basis to infer that the obstinacy

that they are tasked with representing him. His refusal to

is a product of the mental illness. None of these scenarios

cooperate with his attorneys does not, in my view, make him

would compel a formal competency trial. Instead, this case

incompetent to stand trial. The Court maintains, however,

presents one of the relatively rare instances in which there

that there is some evidence that appellant is incompetent to

is at least some evidence from which it may rationally be

stand trial as a result of paranoid delusions about his attorneys'

inferred not only 1) that the defendant suffers some degree of

motives and other aspects of the case. I disagree.

debilitating mental illness, and that 2) he obstinately refuses

to cooperate with counsel to his own apparent detriment, but

Under our statute a person is incompetent to stand trial if he

also that 3) his mental illness is what fuels his obstinacy.

does not have:

Whenever a trial court's informal inquiry establishes that there

is some evidence that could rationally support all three of (1) sufficient present ability to consult with the person's

these inferences, it should conduct a formal competency trial. lawyer with a reasonable degree of rational understanding;

or

*14 Therefore, bearing firmly in mind that the standard

for requiring a formal competency trial is not a particularly (2) a rational as well as factual understanding of the

onerous one—whether, putting aside the evidence of proceedings against the person. 1

competency, there is more than a scintilla of evidence that

would support a rational finding of fact that the accused is No one disputes appellant's competence under part (2); that

41 is, no one suggests that he lacks a rational as well as factual

incompetent to stand trial —we hold that the trial court

understanding of the proceedings against him. The issue

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Turner v. State, --- S.W.3d ---- (2013)

before us is his competence under part (1), whether he has take), Dr. Axelrad nevertheless concluded that appellant “is

sufficient present ability to consult with his lawyer with a presently mentally competent to stand trial.”

reasonable degree of rational understanding.

In April of 2011, appellant was referred by his attorneys to

The trial court had before it three types of evidence relevant Dr. Shawanda Williams–Anderson. She concluded, “Because

to this determination: (1) expert evaluations, (2) statements of the seriousness of Mr. Turner's charges, his unwillingness

by appellant's attorneys, and (3) appellant's own statements. to participate in his defense, and his extreme distrust of

None of this evidence shows that appellant lacked the every member of his team his competency to stand trial is

sufficient present ability to consult with his attorneys with a questionable.” She further stated that appellant is “making

reasonable degree of rational understanding. dire decisions that are detrimental to his defense and has

understanding of doing so. Thus his mental capacity to

stand trial is not the source of contention, but his ability to

participate in the legal process was closely evaluated.” She

A. The Experts

concluded that, “To date, his participation and involvement

Appellant was first evaluated by Dr. Karen Gollaher in have had adversarial effects and hindered the defense team

May of 2010. He largely cooperated with the competency in every way. Therefore, Mr. Turner cannot be expected to

evaluation but would not discuss his actual actions at the comply with his team during the progression of his defense

time of the crime in order to protect his Fifth Amendment including trial. Under Article 46B, Mr. Turner's actions would

rights. Although appellant reported some possible paranoid deem him incompetent to stand trial.”

thoughts, Dr. Gollaher concluded that “these do not

undermine his ability to participate in the court procedures.” Essentially, Dr. Williams–Anderson conceded that appellant

With respect to competence to stand trial, Dr. Gollaher found: had the mental capacity to stand trial but concluded that

appellant distrusted the defense team and was acting in a

*15 Mr. Turner knows the way detrimental to his defense. But Dr. Williams–Anderson's

charge against him and a possible focus on appellant's motives and actions is beside the point.

punishment. He understands the role Appellant had the mental capacity to work with the members

of various courtroom person[ne]l, the of his defense team but chose not to work with them because

available pleas and the plea bargaining he distrusted them. Dr. Williams–Anderson's conclusion that

process.... [H]e was concerned that his appellant's “actions would deem him incompetent to stand

version of events was heard by the trial” is faulty because a person's actions can never render him

public and he discussed issues that incompetent to stand trial. It is the person's mental ability that

might be considered mitigating. This matters.

suggests that he does have an interest

in defending himself and may not be Finally, at the urging of defense counsel, the trial court

as indifferent as he presents himself to appointed Dr. M. Connie Almeida to evaluate appellant in

be. He is capable of communicating May of 2011. Dr. Almeida said that she could not reach

events in an understandable manner a professional opinion regarding appellant's competency to

and can report his state of mind. stand trial based on her interview “because of his limited

cooperation.” However, based on her review of records,

Dr. Gollaher ultimately concluded that, within a reasonable interview with jail staff, and her limited interview with

degree of certainty, appellant was currently competent to appellant, it was her professional opinion that appellant's

stand trial. “functioning has not changed significantly since his previous

assessments of competency” by Dr. Gollaher and Dr. Axelrad.

In June of 2010, appellant was evaluated by Dr. David “It is my opinion,” she stated “that there have been no

Axelrad. Dr. Axelrad said that appellant “may have a mental significant changes in Mr. Turner's emotional or cognitive

illness and the diagnosis may be a paranoid disorder” functioning since the time of these evaluations (6/1/10 and

but that appellant was unwilling to disclose the nature of 6/18/10) that would adversely impact his competency to stand

the relationship with his wife immediately preceding the trial at the present time.” When questioned at a hearing, Dr.

commission of the murders. Though appellant might benefit Almeida stated that she could not definitively say that he

from psychiatric medications (which he was refusing to

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Turner v. State, --- S.W.3d ---- (2013)

was not paranoid and that such condition was not interfering to us to be a recalcitrant client and it has—has clearly, to us,

with his ability to rationally assist his defense. But she also gotten beyond that.”

affirmed, “There is no current evidence to substantiate a

delusional or other psychiatric disorder.” McCann remarked that, “I've never been in a place where

the client has withdrawn to this degree.” McCann stated that

he believed there had been a change, though perhaps not

witnessed by the jail, but a noticeable change in appellant's

B. The Attorneys

demeanor and behavior over the last several months. McCann

*16 Attorneys Tyrone Moncriffe and Patrick McCann urged the trial court “to give us a chance to sit there and flesh

executed affidavits, but these affidavits were not directly this out during a competency trial, and even if necessary, to

introduced into evidence before the trial court. Some of appoint Mr. Turner other counsel and allow Mr. Moncriffe

the content of these affidavits was introduced through and I to testify and subject us to cross.”

Dr. Almeida's testimony. Dr. Almeida summarized these

affidavits as expressing the concern that appellant was I believe an attorney's statements about his client's mental

accusing counsel of coercion, hiding and misusing state can, in appropriate circumstances, raise an issue

information, and not representing appellant's best interests. of incompetency without regard to expert testimony. But

Counsel elicited testimony from Dr. Almeida that appellant sometimes an attorney's observations, especially with respect

actually believed that the defense attorneys were coercing to delusions, are not alone a sufficient basis for concluding

appellant's children into testifying against him and that that a defendant is incompetent. 2 Regardless, in the present

McCann was part of a secret society that desired appellant's case, the defense attorneys specifically refrained from relying

conviction. Dr. Almeida also recalled that Moncriffe had upon their own recollections as evidence. Their affidavits

“indicated several instances of delusional comments and were not introduced into evidence and were addressed only as

thinking.” It was partly based upon these affidavits that Dr. part of the basis for Dr. Almeida's opinions. But as explained

Almeida said that she could not definitively say that appellant above, Dr. Almeida ultimately concluded, despite these

did not have a paranoid condition that was interfering with affidavits, that there was no current evidence to substantiate

his ability to assist his defense. But even considering those a delusional or other psychiatric disorder. And in making

affidavits, Dr. Almeida nevertheless testified that appellant's statements to the trial court, McCann refrained from framing

condition had not changed from the prior interviews and that those statements as testimony, which would have subjected

there was no current evidence to substantiate a delusional or him to cross-examination. Instead, he invited the trial court to

other psychiatric disorder. rely upon its own observations.

At the conclusion of the hearing, McCann argued that *17 Pointedly, the trial court articulated its own

appellant's paranoia had impaired the defense because observations, concluding that there was no evidence of

appellant was refusing to discuss any of the jurors incompetency, as follows:

with counsel during voir dire. McCann conceded that

“examinations in the year prior,” by Dr. Gollaher and Dr. I have watched Mr. Turner throughout

Axelrad, “although they showed some of the problem, did not these several weeks that we've been

at that time rise to the level, in their opinion of incompetency.” going through the jury selection. He

But McCann said, “I can tell you that it has materially has been paying attention; he has been

changed over the last several months, perhaps only because reacting. Your comment this afternoon

of the proximity of the actual case that's brought this out, but about suspicion had a definite reaction

it has—it has brought us to a complete standstill in our ability from Mr. Turner, so he's paying

to determine or advise Mr. Turner about whether to testify or attention. He knows what's going on.

whether to assist in any of this.” At that point, the prosecutor The fact that he will not talk to you,

interjected, “I don't—I don't mind him arguing, but I've got to while that makes defense counsel's

be able—to be able to cross-examine somebody if he's going representation difficult, it doesn't rise

to give you new evidence, Judge.” McCann responded, “He's to the level of incompetency. The

right. He's right, and I'll rephrase that. The Court has watched evidence just doesn't show that. And

Mr. Moncriffe and myself struggle with what appeared at first the case cited by the prosecution in this

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Turner v. State, --- S.W.3d ---- (2013)

He went out and got a—tried to get a doctor to rule me

case recognizes that behavior alone

incompetent. And the reason that he was trying to do that ...

doesn't meet the requirements. It's one

another defense attorney here tried to get legal guardianship

part of a whole matter that has to be

of me so they could file stuff on my behalf instead of getting

looked at. I wanted to hear evidence

my family members.”

that would lead us to a full hearing,

but I have not heard that; therefore, I'm

*18 Appellant would not be the first guilty defendant to

denying it.

refuse to cooperate with his attorneys. Despite overwhelming

evidence showing that he intentionally killed two people,

Even if the attorneys' observations were taken as evidence,

appellant wanted an acquittal. He concocted a far-fetched

those observations do not indicate that appellant was

story to attempt to show his innocence. It might not be

incapable of consulting with his attorneys with a reasonable

an exaggeration to say that his position was extremely

degree of rational understanding. They show merely that

shortsighted and wrongheaded, but that does not make

he was unwilling to do so. No one disputes that appellant

him incompetent. His attorneys refused to go along with

understood what the proceedings were about and that he

appellant's desired strategy. While I don't fault them for that,

was mentally able to consult with the attorneys if he

it is understandable that appellant would. The attorney-client

so desired. That he lacked the desire to do so is not

relationship had deteriorated to the point that his own attorney

evidence of incompetence. And to the extent appellant's lack

was calling his testimony “drivel.” It is not difficult to see

of cooperation escalated, this was based on the fact that

why appellant is upset with them. Appellant has been an

the attorneys progressively engaged in tactics with which

extraordinarily difficult client who seems to have made bad

appellant disagreed, e.g. deposing appellant's children, and by

choices about trial strategy. But bad choices are not the same

the fact that the trial date loomed ever closer, both of which

as irrational choices, except in the loosest, non-legal sense.

are at least somewhat rational explanations for appellant's

To the extent that the Court conflates the two, I believe that

uncooperative behavior.

it errs.

The trial court was within its discretion to find, after the

C. Appellant's Testimony testimony of three expert witnesses, that appellant had not

established a right to a full hearing.

Appellant testified at trial that he did not commit the murders

and that he was not even present at the time. He also testified I respectfully dissent.

that his wife had been having an affair with the mayor and

that the mayor had been threatening him. He claimed that his

children were coerced into making statements against him. He 3

disagreed with his attorneys' decision to allow his children to

participate in depositions, and he disagreed with his attorneys'

strategy to admit in opening statement that he killed his wife. 3

Appellant also made statements that indicated he believed

the defense attorney and the prosecutor were suppressing

3

evidence and conspiring to convict him.

On redirect, McCann asked appellant, “Mr. Turner, in your 3

mind, all that drivel was true, wasn't it?” Appellant responded,

“It is true.”

3

On cross, the prosecutor asked, “Do you understand your

attorney just said that you're lying, that it's drivel?” Appellant

responded, “He's been saying this and trying to pretend.

Footnotes

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Turner v. State, --- S.W.3d ---- (2013)

1 TEX. PENAL CODE § 19.03(a)(7)(A).

2 TEX.CODE CRIM. PROC. art. 37.071, §§ 2(b) & 2(e)(1).

3 TEX.CODE CRIM. PROC. art. 37.071, § 2(h).

4 In his ninth point of error, the appellant specifically argues that we should remand the cause for a retrospective competency hearing.

Appellant's Brief at 29–31.

5 There is no evidence that the home was broken into, and the appellant was not charged with committing murder in the course of a

burglary, another theory of capital murder. TEX. PENAL CODE § 19.03(a)(2).

6 According to the 2010 edition of the Physicians' Desk Reference, Risperdal is an “atypical antipsychotic” prescribed for the treatment

of schizophrenia and bipolar disorder. PHYSICIANS' DESK REFERENCE 2682 (64th ed.2010).

7 Axelrad's report was submitted on the form approved by the Texas Correctional Office on Offenders with Medical or Mental

Impairments under Section 614.0032(b) of the Texas Health and Safety Code. TEX.CODE CRIM. PROC. art. 46B.025(d); TEX.

HEALTH & SAFETY CODE § 614.0032(b).

8 Because the presiding judge for the 268th Judicial District Court was out sick on December 10, 2010, both this ex parte conference

in chambers and the hearing that occurred in open court later that same day were presided over by the judge of the 434th Judicial

District Court.

9 We find no such motion or affidavit, however, in the record.

10 Other than the informal hearing on April 18th, after which the trial court ruled that no formal competency hearing was necessary,

there had been no prior competency hearing.

11 We note here that having a rational understanding of the proceedings is not the same thing as having the ability to consult with trial

counsel with a reasonable degree of rational understanding or to “rationally assist his lawyers in the defense of his case”—the specific

issue that the trial court asked Almeida to evaluate. Unless a criminal defendant satisfies both criteria, he is incompetent to stand

trial. TEX.CODE CRIM. PROC. art. 46B.003(a).

12 Trial counsel later renewed their claim that the appellant was incompetent in a motion for new trial. At a hearing on that motion,

McCann testified that, prior to trial, the appellant “gave, at one point, three different versions of what had happened the night of

the killings to myself and Mr. Moncriffe, and at no point in the conversation, did he indicate which one he intended to testify to.”

McCann continued:

He became extremely upset with us and me, in particular, and began to ask if, you know, I was part of a secret society that was

trying to get him killed or that was advancing my career by failing to defend him. He, at one point, when we were sitting next to

each other, asked me if I was putting things in his coffee. It—it had got to the point of absurdity in some of our conversations.

He constantly referred me to Biblical passages that appeared to have no relevance in terms of his defense.

[The appellant] was obsessed with the Mayor of Kendleton with whom he believed his wife had had an affair. He was constantly

attempting to blame the killings on this—that person, and that's essentially what he testified to, almost as if he wanted it to be

true. And I don't—I'm not a mental health professional. I can only tell you that I have done this for many years. I have never

had a client who, so fundamentally refused to acknowledge the daily reality that we were dealing with to the point that it was

as if he was telling you the sky was always green. That—I have to attribute to something other than ... a simple attempt to lie

because there was no basis for the lie. There was not a fact to support his view of what was going on.

13 In three points of error, the appellant argues that, if he was indeed competent, then he was denied his Sixth Amendment right to

represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In view of our disposition of

this appeal, we need not presently address this claim.

14 The jury heard a recording of the 911 call that the appellant's daughter placed to report the killings as they were occurring. The first

prosecutor argued:

And I know that the only person not affected by that 9–1–1 call was the man who created it, the Defendant. And he basically

told you that when he got up on that stand. He told that [his daughter] had misidentified him, that maybe she thought she saw

him, but that's not who it was.

Misidentified him? This is a 12–year–old girl who's not identifying a stranger; she's not giving just a general description of

someone. It's her father. She knows who he is, and she knows what he did.

He chose to testify and tell you a story, and that's exactly what it was, a story. But it doesn't make sense because lies don't

make sense.

The second prosecutor took up the theme of the appellant's demeanor from the witness stand:

There were no tears from the Defendant. And what you saw of him on Friday, there was no admissions by him of what he had

done. There was no shame for what he had done. “I wasn't there.”

And it was defiance. It was defiance with a complete lack of acceptance of what the facts are in his demeanor from the witness

stand.

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 16

Turner v. State, --- S.W.3d ---- (2013)

He comes up with a story it's the mayor of Kendleton's fault. What does that tell you about his demeanor and what his mindset

is in this?

15 Those arguments include the following:

And then what does he do? He gets up on the stand and he tells you that he wasn't even there. With all the overwhelming

evidence against him, he still can't admit that he did it. He gets up on the stand and he says, I wasn't there, even though his

own attorneys told you that he did it.

What does that say about a person? What kind of person can sit and listen to the 9–1–1 call that y'all heard [the appellant's

daughter] describing her grandmother and mother dying before her eyes and show no emotion? What kind of person can sit

there and look at autopsy photos of what he's done, his wife and mother-in-law's necks open, and show no emotion? What kind

of person is that?

What does that say about a person? It says that they're a threat. It tells you that they're dangerous.

He's shown absolutely no remorse and instead has done the complete opposite by saying he wasn't even there.

You watched him testify during guilt/innocence. Do you remember he told you the story of how he went to his house and there

was a man inside of his house? “I don't know who it was. It wasn't me. I wasn't there.”

I know who was in his house and so do you. It was the Defendant. It was the Defendant. And it's not that he can't tell you; he

won't. And just as we discussed during cross-examination of the Defendant, what kind of dangerous does that make him? What

kind of dangerous does that make him? What kind of dangerousness is engendered in the lack of remorse?

16 E.g., Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (“We have repeatedly and consistently

recognized that ‘the criminal trial of an incompetent defendant violates due process.’ ”) (quoting Medina v. California, 505 U.S. 437,

453, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)).

17 Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

18 Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

19 Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

20 TEX.CODE CRIM. PROC. ch. 46B, subch. A–C.

21 See TEX.CODE CRIM. PROC. art. 46B.003(a)(1) & (2) (“A person is incompetent to stand trial if the person does not have ...

sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or ... a rational as

well as factual understanding of the proceedings against the person.”).

22 TEX.CODE CRIM. PROC. art. 46B.024 §§ (1)(C) & (4) (emphasis added). (Section 4 of Article 46B.024 was amended in 2011,

after the appellant's trial, and presently reads: “the degree of impairment resulting from the mental illness or mental retardation, if

existent, and the specific impact on the defendant's capacity to engage with counsel in a reasonable and rational manner.” Acts 2011,

82nd Leg., ch. 822, § 7, p. 1897, eff. Sept. 1, 2011.). See Morris v. State, 301 S.W.3d 281, 285–86 & n. 10 (Tex.Crim.App.2009)

(factors listed in Article 46B.024 are “relevant” to the determination of competency, including whether the defendant can “engage

in a reasoned choice of legal strategies and options”).

23 See, e.g., Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973) (evidence did not support trial court's finding that the

appellant was competent to stand trial when testimony showed without contradiction that he suffered from paranoid schizophrenia

and his mental illness prevented him from cooperating with trial counsel); State v. Pedersen, 309 N.W.2d 490, 501 (Iowa 1981)

(although the defendant appeared to have a factual understanding of the proceedings against him, delusions fueled by schizophrenia

prevented him from cooperating with defense counsel, rendering him “unable to assist effectively in his defense”); United States

v. Blohm, 579 F.Supp. 495, 505 (S.D.N.Y.1983) (Dusky standard not satisfied when, although he had factual understanding of the

proceedings, the defendant harbored certain delusional beliefs that rendered him “unable to consult with his lawyer and assist in his

own defense”); Strickland v. Francis, 738 F.2d 1542, 1551 (11th Cir.1984) (overturning a state-court finding that the applicant was

competent to stand trial because expert testimony overwhelmingly established that his mental illness caused delusions that rendered

him “unable to understand the nature of the proceedings against him and to participate meaningfully in his defense”); United States v.

Hemsi, 901 F.2d 293, 296 (2nd Cir.1990) (evidence supported the trial court's finding of incompetency because the appellant's “major

psychiatric disorder and his impaired sense of reality prevented him from focusing on his legal needs and from acting effectively on his

intellectual understanding, and would prevent him from cooperating rationally in his defense”); Lafferty v. Cook, 949 F.2d 1546, 1556

(10th Cir.1991) (state court erred to find the applicant competent on the basis of a simple factual understanding of the proceedings

against him where his paranoid delusions rendered him unable “to realistically determine where his best interests lie”); United States

v. Boigegrain, 155 F.3d 1181, 1189–90 (10th Cir.1998) (evidence sufficient to support trial court's finding of incompetency when

“the defendant was delusional and suffered from ‘paranoid ideation,’ causing him to believe that his lawyer was participating in a

conspiracy, along with the prosecutor and the judge, to incarcerate him for reasons unrelated to the charge against him”); United

States v. Ghane, 490 F.3d 1036, 1040 (8th Cir.2007) (evidence sufficient to support trial court's finding of incompetency because,

though the defendant had a factual understanding of the proceedings against him, “that understanding was not rational because it was

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 17

Turner v. State, --- S.W.3d ---- (2013)

premised on his delusion of a government conspiracy working against him, including the doctors, lawyers, and the court”); People v.

Mondragon, 217 P.3d 936 (Colo.App.2009) (trial court erred to find the defendant competent based on factual understanding of the

proceedings alone when his mental illness prevented him from making a rational decision whether to testify in his own behalf). See

also Wilcoxson v. State, 22 S.W.3d 289, 305 (Tenn.Crim.App.1999) (“[C]ourts have acknowledged that, even if a criminal defendant

has an intellectual understanding of the charges against him, he may be incompetent if his impaired sense of reality substantially

undermines his judgment and prevents him from cooperating rationally with his lawyer[.]”). Other courts have followed suit, albeit

in unpublished decisions. See United States v. Nagy, No. 96 CR. 601(RWS), 1998 WL 341940, at *7 (S.D.N.Y. June 26, 1998)

(the defendant's “understanding of the pending criminal proceedings is necessarily skewed by his [delusional] belief that there is

a conspiracy against him involving, among others, judges, the Government, a priest, his landlord, and all psychiatrists who have

examined him”); United States v. Bauman, No. 07–20052–KHV, 2008 WL 2560706, at *7 (D.Kan. June 26, 2008) (notwithstanding

evidence that the defendant had a factual understanding of the proceedings, the trial court “finds that due to a delusional disorder,

defendant lacks sufficient contact with reality to the extent that he cannot rationally consult with or cooperate with his attorney in

this case”); Aldridge v. Thaler, No. H–05–608, 2010 WL 1050335, at *33 (S.D.Texas March 17, 2010) (“Without the ability to make

crucial decisions and add relevant information to the defense, communication [with counsel] does not amount to the consultation or

assistance required by the Supreme Court.”); State v. Williamson, No. 1106025042, 2013 WL 268981, at *9 (Del.Super.Ct. January

23, 2013) (“[D]efense lawyers must provide the best defense consistent with the client's direction. However, when delusions infect

the process with fanciful aberrations, the trial would be a mockery of justice. Where a psychotic disorder precludes a meaningful

defense, then no one can be subject to the gauntlet of trial.”).

24 See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (in a criminal case, “the accused has the ultimate

authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own

behalf, or take an appeal”); Ex parte Mines, 26 S.W.3d 910, 915 (Tex.Crim.App.2000) (“Another reason for requiring competency

at trial is that the defendant must make significant choices that require the advice of counsel but that are ultimately decided by the

defendant. The defendant must be competent to decide whether to invoke or to waive such personal constitutional rights.”) (citations

omitted).

25 See Mondragon, supra, at 942 (“[I]f defendant's mental disease or defect rendered him incapable of deciding rationally whether to

testify, then, because of the nature of that right, he necessarily lacked the sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding and the requisite factual and rational understanding of the proceedings against him.”).

26 Moore v. State, 999 S.W.2d 385, 395 (Tex.Crim.App.1999); Bouchillon v. Collins, 907 F.2d 589, 593 (5th Cir.1990).

27 See Reed v. State, 112 S.W.3d 706, 710 (Tex.App.–Houston [14th Dist.] 2003, pet. ref'd) (“It is not enough for counsel to allege

unspecified difficulties in communicating with the defendant.”) (citing Moore, supra, at 394).

28 Loftin v. State, 660 S.W.2d 543, 546–47 (Tex.Crim.App.1983).

29 In 2003, the Legislature comprehensively revised the procedures governing determinations of competency to stand trial, repealing

former Article 46.02 of the Texas Code of Criminal Procedure, and replacing it with current Chapter 46B. See Acts 2003, 78th Leg.,

ch. 35, §§ 1 & 15, pp. 57–68 & 72, eff. Jan. 1, 2004.

30 See TEX.CODE CRIM. PROC. art. 46B.004(c) (“On suggestion that the defendant may be incompetent to stand trial, the court shall

determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may

be incompetent to stand trial.”).

31 Montoya v. State, 291 S.W.3d 420, 425 (Tex.Crim.App.2009) ( “suggestion” means the same as bona fide doubt under former statutory

provisions; hence, “[i]f a trial judge has a bona fide doubt about the competency of the defendant, he or she shall conduct an informal

inquiry to determine if there is evidence that would support a finding of incompetence”). Cf. Alcott v. State, 51 S.W.3d 596, 600–01

(Tex.Crim.App.2001) (under the former statutory scheme, bona fide doubt triggered competency inquiry during which the trial court

must determine whether there is “some evidence” to support a finding of incompetency so as to trigger a formal competency hearing).

32 See Acts 2011, 82nd Leg., ch. 822, §§ 2 & 21(b), p. 1895 & 1901, eff. Sept. 1, 2011 (adding Subsection (c–1) to Article 46B.004

to provide that: “A suggestion of incompetency is the threshold requirement for an informal inquiry under Subsection (c) and may

consist solely of a representation from any credible source that the defendant may be incompetent. A further evidentiary showing is

not required to initiate the inquiry, and the court is not required to have a bona fide doubt about the competency of the defendant.”).

33 TEX.CODE CRIM. PROC. art. 46B.004(c).

34 Ex parte LaHood, 401 S.W.3d 45, 52–53 (Tex.Crim.App.2013) (quoting Sisco v. State, 599 S.W.2d 607, 613 (Tex.Crim.App.1980)

(plurality opinion)). See also Williams v. State, 663 S.W.2d 832, 834 (Tex.Crim.App.1984) (applying Sisco, and construing prior

statutory language that required a formal competency hearing upon a determination that there is evidence from any source “to support

a finding of incompetency to stand trial”); Barber v. State, 737 S.W.2d 824, 828 (Tex.Crim.App.1987) (same); George E. Dix &

John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31:36, at 49 (3rd ed. 2011) (“The

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 18

Turner v. State, --- S.W.3d ---- (2013)

language used [in the current statutory scheme] for the standard to determine whether a hearing must be held is identical to that in the

former statute determining whether a jury trial was required. This clearly incorporates the case law development of that criterion[.]”).

35 See TEX.CODE CRIM. PROC. art. 46B.005(a) & (b) (if informal inquiry reveals “that evidence exists to support a finding of

incompetency,” then the trial court should order an expert examination and “shall hold a trial ... before determining whether the

defendant is incompetent to stand trial”); George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE

AND PROCEDURE § 31:53, at 63 (3rd ed. 2011) (“A trial on the merits of the competency issue is apparently required if the trial

court determines that evidence exists to support a finding of incompetency. This standard uses the same terminology as former ...

Article 46.02, section 4(a) of the Code of Criminal Procedure. Almost certainly, it will be given the same interpretation as that

prior statutory language.”). If “evidence exists to support a finding of incompetency,” a trial is mandated unless the parties can

agree without a trial that the defendant is incompetent. TEX.CODE CRIM. PROC. arts. 46B.005(a)–(c), 46B.054. Unlike the former

statutory regime, which required that a jury be empaneled to determine competency, under the current statute, the trial court makes

the ultimate determination with respect to competency unless either of the parties or the trial court itself registers a preference that

“a jury shall make that determination.” TEX.CODE CRIM. PROC. art. 46B.051.

36 E.g., Ferguson v. State, 579 S.W.2d 2, 4–5 (Tex.Crim.App.1979); Bigby v. State, 892 S.W.2d 864, 885 (Tex.Crim.App.1994).

37 See Drope, supra, at 181 (“Even when a defendant is competent at the commencement of his trial, a trial court must always be alert

to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.”).

38 TEX.CODE CRIM. PROC. art. 46B.024(4) & (1)(C), respectively.

39 In her dissenting opinion, Judge Keller relies heavily upon the lack of expert opinion that there was any “current evidence to

substantiate a delusional or other psychiatric disorder.” Dissenting Opinion at 6. It is true that none of the experts in this case ultimately

expressed such an opinion. However, it is not evident why the opinion of an expert should be considered indispensable to raising

incompetency—especially considering our holding that an expert's opinion is not necessary to raise the defense of insanity (which,

unlike the standard for incompetency to stand trial, expressly requires a finding that the defendant's condition be “a result of severe

mental disease or defect”). Cf. Pacheco v. State, 757 S.W.2d 729, 736 (Tex.Crim.App.1988) (“[W]e hold that predicated lay opinion

testimony when considered with facts and circumstances concerning an accused and of the offense may be sufficient to raise the

issue [of insanity].”); TEX. PENAL CODE § 8.01(a). And while none of the experts here stated unequivocally that the appellant is

mentally ill, both Gollaher and Axelrad noted the possibility of paranoid and delusional thinking on his part, and Axelrad observed

that he was “an individual who may have a mental illness and [that] the diagnosis may be a paranoid disorder.” Axelrad even found

appellant to be at least “mildly impaired” on that account in his ability to rationally engage with counsel about the case and about

his choice of legal strategies and options. Almeida's conclusion that the appellant displayed no delusional disorder was based upon

her perception that there were “no significant changes in [the appellant's] emotional or cognitive functioning” since the year-old

evaluations of Gollaher and Axelrad. She took no account of the appellant's subsequent behaviors that might serve to substantiate

the initial impressions of Gollaher and Axelrad that he may suffer from a “mental illness” that “may be a paranoid disorder.” These

circumstances constitute some evidence—at least “more than none or a scintilla,” see note 34, ante—that the appellant suffers from

a debilitating mental illness—enough that, in combination with some evidence of the other two factors, it may be said “that evidence

exists to support a finding of incompetency” for purposes of a formal competency trial under Article 46B.005.

40 Supposing (without deciding) that the appellant was incompetent, it is not difficult to imagine how his delusional beliefs could have

tainted the trial process. Taking the witness stand against the advice of counsel, he proceeded to testify at odds with the defensive

posture of his lawyers based upon a wholesale denial of responsibility that was worse than implausible. This opened the door for the

prosecutors to expose the irrationality of his account on cross-examination and then to highlight, at both the guilt and punishment

phases of trial, that his willful refusal to acknowledge blame was nothing but a clear signal of his enduring threat to society. To the

extent that the appellant's disastrous decision to testify was the product of a conflict with trial counsel that derived from a paranoid

pathology, it is constitutionally intolerable. The trial court erred not to conduct a formal competency trial that could have ruled out

that substantial possibility before proceeding to trial on the indictment.

We do not mean by these observations to suggest that due process error in putting an incompetent defendant to trial is necessarily

subject to a constitutional harm analysis. Although at least one court has held such error to be “structural,” Mondragon, supra,

at 942–43, neither the United States Supreme Court nor this Court has yet declared whether the due process violation of trying

an incompetent defendant constitutes the type of constitutional error, such as those enumerated most recently in United States v.

Gonzalez–Lopez, 548 U.S. 140, 148–49, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), that is not susceptible to a harm analysis. We

have no occasion to decide that question today. We simply point out that, if on remand the appellant in this case should indeed

be found to be incompetent to stand trial, it is not hard to see how his incompetency had an obviously deleterious impact on the

conduct of his trial, and particularly, his exclusive decision whether or not to testify.

41 See note 34, ante.

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 19

Turner v. State, --- S.W.3d ---- (2013)

42 See George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 31:81, at 89–

90 & n. 10 (3rd ed.2011) (citing, e.g., Torres v. State, 593 S.W.2d 717, 719 (Tex.Crim.App.1980) (remanding to trial court to decide,

inter alia, whether “a nunc pro tunc determination of appellant's competency is not possible”); Ex parte McKenzie, 582 S.W.2d 153,

155 (Tex.Crim.App.1979) (remanding case to the trial court to “determine if it is possible to conduct a nunc pro tunc competency

hearing and, if it is, to hold such a hearing” under the then-extant competency-to-stand-trial statute); Ex parte Winfrey, 581 S.W.2d

698, 699 (Tex.Crim.App.1979) (holding that the original competency hearing suffered from a flawed jury instruction, this Court

remanded to the trial court for a determination whether, inter alia, a retrospective competency hearing was feasible)).

43 TEX.CODE CRIM. PROC. ch. 46B, subch. C.

44 This Court has sometimes disposed of other appellate points of error on original submission before remanding a cause for a

retrospective competency determination. E.g., Brandon v. State, 599 S.W.2d 567, 574 (Tex.Crim.App.1979) (opinion on original

submission); Barber v. State, 737 S.W.2d 824, 829 (Tex.Crim.App.1987). Three of the appellant's remaining points of error in this

case, however, involve the issue of whether he should have been allowed to represent himself at various points at trial. See note

13, ante. The ultimate resolution of the issue of his competency to stand trial may prove to have some bearing on these points of

error. See Indiana v. Edwards, 554 U.S. 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (“[T]he Constitution permits States to

insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental

illness to the point where they are not competent to conduct trial proceedings by themselves.”). We therefore believe that resolution

of these self-representation claims, if necessary, would best await our opinion after remand. The appellant's remaining points of error

involve claims that the State exercised certain peremptory challenges to discriminate against African–American veniremen and that

the trial court erred in failing to bench warrant the appellant from the penitentiary to assure his attendance at the motion for new

trial hearing. The resolution of these claims also may prove unnecessary. In order to avoid resolving the appellant's points of error

piecemeal—some now and some later—we will abstain from addressing any of them unless and until it should become necessary

to do so in our opinion after remand.

1 TEX.CODE CRIM. PROC. art. 46B.003(a).

2 See Panetti v. Quarterman, 551 U.S. 930, 962, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“Expert evidence may clarify the extent to

which severe delusions may render a subject's perception of reality so distorted that he should be deemed incompetent.”).

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.

© 2014 Thomson Reuters. No claim to original U.S. Government Works. 20

Exhibit

B

1

1 REPORTER'S RECORD

VOLUME 1 OF 1 VOLUME

2 TRIAL COURT CAUSE NO. 10-DCR-054233

3 THE STATE OF TEXAS ) IN THE DISTRICT COURT

)

4 vs. ) FORT BEND COUNTY, TEXAS

)

5 ALBERT JAMES TURNER ) 268TH JUDICIAL DISTRICT

6

7

8 _____________________________________________

9 DETERMINATION OF RETROSPECTIVE COMPETENCY

_____________________________________________

10

11

12 On May 30, 2014, the following proceedings came on

13 to be held in the above-titled and numbered cause before

14 the Honorable Brady G. Elliott, Judge Presiding, held in

15 Richmond, Fort Bend County, Texas.

16 Proceedings reported by computerized stenotype

17 machine.

18

19

20

21

22

23

24

25

2

1 APPEARANCES

2 MR. FRED FELCMAN

MS. GAIL MCCONNELL

3 MS. LESLEIGH SAUNDERS

FORT BEND COUNTY DISTRICT ATTORNEY'S OFFICE

4 301 JACKSON

RICHMOND, TEXAS 77469

5 Counsel for The State of Texas

6 MR. RICHARD A. MORROW

SBOT NO. 14542400

7 LOCKE LORD, L.L.P.

600 CONGRESS AVENUE, SUITE 2200

8 AUSTIN, TEXAS 78701

Telephone: 512.305.4709

9 Counsel for Defendant

10 MR. JAMES RYTTING

SBOT NO. 24002883

11 Hilder & Associates

819 Lovett Boulevard

12 Houston, Texas 77006

Telephone: 713.655.9111

13 Writ Counsel for Defendant

14

15

16

17

18

19

20

21

22

23

24

25

3

1

2 VOLUME 1

3 DETERMINATION OF RETROSPECTIVE COMPETENCY

4 May 30, 2014

PAGE VOL.

5 Proceedings Commence .............................. 4 1

6 Announcements ..................................... 4 1

7 Ruling of the Court .............................. 16 1

8 Reporter's Certificate ........................... 19 1

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

4

1 PROCEEDINGS

2 THE COURT: This is in the matter of The

3 State of Texas vs. Albert James Turner, No. 54233.

4 If you'll make your announcements, please.

5 MR. FELCMAN: Fred Felcman for The State

6 of Texas, Judge.

7 MR. MORROW: Robert Morrow for the

8 defendant, Mr. Turner; and Aisha Khan is with me this

9 morning, your Honor.

10 THE COURT: Mr. Morrow, I noticed in the

11 files, the papers in the file, that you've entered your

12 appearance as lead attorney for Mr. Turner at this

13 stage.

14 MR. MORROW: I have, your Honor. I've

15 openly discussed that.

16 THE COURT: Okay. Very good.

17 The purpose of this hearing is to

18 determine the necessity of a -- or the necessity and

19 feasibility of a retrospective competency hearing, and

20 you've been joined by counsel for -- who's handling the

21 writ.

22 Do you want to make your announcements, if

23 you're going to participate?

24 MR. RYTTING: Yes, James Rytting here for

25 Mr. Albert James Turner.

5

1 THE COURT: All right. The way this has

2 come down, as I've read the opinion of the Court of

3 Criminal Appeals, it almost throws this on my lap to

4 determine the feasibility; and I am interpreting that to

5 ask for help from counsel who's best positioned to do so

6 to argue the necessity -- Well, not necessity. The

7 Court of Criminal Appeals has already ordered the

8 necessity of it, but the feasibility and the method by

9 which we will accomplish that task, so I -- Since both

10 of you are basically in the same position, I believe, I

11 don't know who's the lead in this or not; but using

12 normal procedure, since it's the burden of the defendant

13 to raise competency, I believe that burden still rests

14 with the defense, so I'll proceed with you and

15 Mr. Morrow and let you lead off on this issue.

16 MR. MORROW: Thank you, Judge.

17 Judge, I did want to mention to the Court

18 that Ms. Amy Martin has put just a tremendous amount of

19 work in this case and would be here with me this

20 morning, but she lost her dad about a week ago, and the

21 funeral is actually right now.

22 THE COURT: I'm sorry to hear that.

23 MR. MORROW: Yes, sir, and I apologize.

24 And, of course, she, except for that extraordinary

25 circumstance, would be here so -- and I hope she will be

6

1 joining us later on in the litigation as we continue.

2 So, Judge, we believe that there's a

3 threshold finding that the Court has to deal with which

4 is whether, as you mentioned, there's the feasibility of

5 having this hearing; and we think before that, we're

6 going to ask the Court and we prepared a motion this

7 morning to let us have an expert to determine whether

8 Mr. Turner is competent now to proceed.

9 And the Green case, which I'll share with

10 the Court, with the prosecutors, 264 S.W.3d 261, out of

11 the San Antonio Court of Appeals, dealt with a situation

12 that's similar to ours, we believe, where the defendant

13 in that case was incompetent, had been incompetent; and

14 in the case, they were determining whether or not they

15 could do a retrospective competency hearing; and the

16 Court in that case found that because of the continued

17 incompetency of the defendant, it was not practical to

18 do so.

19 So we believe the best way to proceed

20 right now would be to let us have an expert examine

21 Mr. Turner for his present competency and then put that

22 in front of the Court so you can have that to consider

23 before deciding whether you could go forward; that way,

24 we'd have an up-to-date, you know, opinion about his

25 state, and you'd be able to make a better decision about

7

1 whether it's possible to have this hearing that the

2 Court has asked you to consider.

3 THE COURT: Mr. Felcman, your response.

4 MR. FELCMAN: I appreciate Mr. Morrow's

5 giving me the case; I really do.

6 This is a very unusual circumstance, okay.

7 We have a 5/4 decision. The five, in reaching a

8 decision in this, use a nonsecular reasoning, circular

9 logic, sort of bypass abusive discretion, and then

10 ignore certain portions of the law; and then they tell

11 you, make a decision whether you can have a retroactive

12 hearing on this matter. Never do they -- Never do they

13 put in the -- in their findings that you will be unable

14 to make a retroactive hearing.

15 Now, I bring that to the attention of the

16 Court because the five people who wrote this should know

17 what the circumstances are. In this particular case,

18 you've already had several experts look at the defendant

19 and all said he was competent. Or they'd say they

20 couldn't determine it because he didn't cooperate with

21 them.

22 THE COURT: I think that's a more accurate

23 rendition of their findings is that they're unable to

24 make a decision because Mr. Turner will not cooperate

25 with the process.

8

1 MR. FELCMAN: Actually, some of them did

2 find him competent. But I understand; you're correct.

3 THE COURT: But that is a finding that

4 we've always followed in the law of competency that if

5 the person won't cooperate and won't participate, they

6 are to be determined to be competent.

7 MR. FELCMAN: That's correct.

8 THE COURT: Which is -- I guess that's

9 what's got in my crawl about this whole matter is that

10 following that rule of law, I get this returned to me.

11 MR. FELCMAN: And actually if you read it

12 over, they actually go ahead and say: "Because the

13 doctor couldn't decide whether he's competent, we must

14 presume he's incompetent." Therefore, I disagree with

15 the opinion wholeheartedly; but that doesn't let you off

16 the hook.

17 THE COURT: Well, did they find that if he

18 didn't participate, then he is incompetent?

19 MR. FELCMAN: They actually have a section

20 in there because the doctor couldn't have enough

21 information to determine whether he was competent or

22 not, there's not evidence that he is competent;

23 therefore, they sort of switched the burden of proof at

24 one point in time in the opinions.

25 THE COURT: So they have changed the whole

9

1 body of law --

2 MR. FELCMAN: They've changed the

3 standard.

4 But that's not Mr. Morrow's fault,

5 whatever. He's just in here arguing his point. I

6 believe that the feasibility of this is quite easily

7 done. The only evidence you will actually have on this

8 matter is --

9 THE COURT: Well, let's talk about his

10 request first that he -- we need to bring him down and

11 determine his competency presently.

12 MR. FELCMAN: That's correct, Judge. And

13 the cases he cited is actually correct. He cites you

14 correctly. It doesn't give any specifics on it.

15 MR. MORROW: May I approach?

16 MR. FELCMAN: Yeah, sure. Give it to him.

17 He doesn't give you any specifics about

18 what was the scenario on this one. It doesn't say -- I

19 don't know if it says anything about the reason we're

20 having this is because he wasn't cooperating with his

21 counsel.

22 Did it say anything like that in there

23 specifically?

24 MR. MORROW: No. No, I don't think it

25 addresses cooperation that I remember.

10

1 MR. FELCMAN: And that's what I think is

2 the key on this particular case. We're just here

3 because the defendant doesn't want to cooperate, all

4 right. And even in the opinion, they say he meets it.

5 We all know nobody's argued that he doesn't have a

6 rational understanding of what's going on here. All

7 we're dealing with here is his ability to cooperate with

8 defense counsel. That's the only issue we're really

9 dealing with here. This case could be pertinent. On

10 the other hand, I don't think it is under the scenario

11 that we have right now.

12 If he has changed, if something comes up

13 where the -- I guess you could do it if the psychiatrist

14 comes up and he has now got a mental illness, maybe that

15 would be something you would need to address; but I

16 don't think we have -- Do we have anything at all on the

17 record that he's got a new mental illness, or is it

18 basically the same thing as always, he doesn't want to

19 cooperate with anybody?

20 MR. MORROW: No, I think even Dr. Alexrad

21 and some of the other doctors mentioned a mental

22 illness; and if I could address Fred's point briefly,

23 Judge, we argue really that this vexation that he won't

24 cooperate is really the best evidence of his mental

25 illness; and the trial itself was so -- Judge, you

11

1 observed that that was so vividly illustrated. This

2 isn't someone that's just, you know, hardheaded. This

3 is someone whose mental illness, whose fixed delusion

4 that we are all conspiring to kill him has kept him from

5 cooperating.

6 And when you look at the T.D.C. records,

7 it's consistent throughout his records. He won't sign

8 things; he won't participate in any way, and it's --

9 That's the mental illness that's expressing itself that

10 makes him incompetent, so while it's extremely

11 frustrating to deal with him, that is his illness, so we

12 ask that we be able to bring that more forcibly to the

13 Court and more vividly to the Court so that you could

14 decide whether you can have this hearing or not.

15 THE COURT: Okay. This is part of what's

16 bothering me about -- The defense has made the request

17 that he be brought in to determine current competency

18 several times.

19 MR. MORROW: Yes, sir.

20 THE COURT: But how does this relate to

21 the Trial on the Merits of the case which is what

22 brought us to this point? I made an explicit finding

23 during the trial that he was competent by my

24 observations. Now, there's room for disagreement there;

25 but at least I'm the one that got to see him for the

12

1 several weeks that we sat through that.

2 Based upon the professionals' examination,

3 they could not reach a decision or they reached a

4 decision finding him competent. We're focused on the

5 Trial on the Merits which brought this issue before the

6 Court of Criminal Appeals, which was to determine

7 whether he was competent during the trial. How is

8 determining his competency now going to impact a

9 decision that I would have to make and the Court of

10 Criminal Appeals would have to make in the end as it

11 relates to his competency at the time of trial? I guess

12 that's the confusing point about your request.

13 MR. MORROW: Judge, if I believe that due

14 process requires that before this -- you can make the

15 next determination, Is this feasible, we have to have a

16 client that can participate to some degree. If we show

17 he can't participate, can't aid his lawyers, then the

18 answer to the question is there for you, that it's not

19 feasible to go forward; and that will end the inquiry.

20 Judge, I was joking earlier about the

21 civil proceeding. I'm just focusing on the remand and

22 abatement for the Court of Criminal Appeals. The rest

23 of it's just too much to take in at one time, so I'm

24 looking at what did they ask you to do, what did they

25 ask Judge Elliott to do, and that is to decide, Is it

13

1 feasible to have a retrospective competency hearing,

2 and, if so, how are we going to do that.

3 We believe that we need to have this

4 examination to ensure due process for Mr. Turner so that

5 before you make that decision, you know whether or not

6 he's competent; and if he's not, of course, we're going

7 to argue it's not feasible to go forward.

8 THE COURT: Okay. Yes, sir.

9 MR. FELCMAN: I appreciate his argument,

10 but that also validates why it is feasible to have a

11 retroactive hearing. This man will not cooperate. It's

12 just that simple. He won't change his stance on that.

13 The defense of the defendant during the

14 trial, it's actually now evident why he may not have

15 wanted to cooperate. That's what the Court did in its

16 decision about Pat McCann's -- What was his ultimate

17 defense of the defendant? And when you read over the

18 dissent, they look at it and say, We understand why he

19 wasn't cooperating with the defense. Look what the

20 defense was. Look at the things they did when he said

21 he didn't want them to do that.

22 We also will have the testimony, of

23 course, things that will aid the Court in making this

24 feasibility -- I mean, making this decision or the jury

25 making this decision. His relationship with the family

14

1 members, all the things that occurred during the trial

2 make it far more feasible to have a retroactive

3 competency hearing that ever could occur.

4 Now, him having examined, Mr. Morrow's not

5 trying to trick the Court. It's in there; but I believe

6 in the long run, it will not have any bearing whatsoever

7 about his retroactive -- or what his competency was back

8 then.

9 THE COURT: Well, I understand the due

10 process argument you're making, that it's difficult --

11 Well, it's clear that if there's a Trial on the Merits

12 on any definitive issue, the defendant has a right to

13 not only be there but to participate in that process;

14 and if we, in fact, have a retrospective competency

15 hearing, it's important that he be here, No. 1, and,

16 No. 2, able to participate.

17 I have some doubts in my mind whether

18 Mr. Turner will change the process that he has used

19 throughout this matter, but that's in the future. I

20 can't read that crystal ball yet.

21 MR. MORROW: May I speak to that briefly,

22 Judge, before you move on?

23 THE COURT: Yes, sir.

24 MR. MORROW: Judge, it's been a long time

25 since someone's approached him to examine him, years

15

1 now; and we're in a different posture. And I may be the

2 ridiculous optimist in the world; but I believe if we

3 can talk to him now, which would require him to come

4 back to Fort Bend County, and explain the posture of

5 this case and then present him with a disinterested

6 expert, someone that's not -- that he's not seen before

7 that's part of the conspiracy -- You know, I'm not

8 saying we can cure him. It may get better. But I just

9 want that chance, Judge; and I think that's what due

10 process is, is to bring him back now in 2014 and say,

11 "Mr. Turner, the situation has changed. Here's what the

12 circumstances are, and you need to participate with this

13 doctor."

14 I think -- You know, I just want that

15 chance, Judge; and I think that's what due process

16 requires; and we would ask the Court, with all due

17 respect, to let us have that opportunity.

18 MR. FELCMAN: Oh, I agree. Why doesn't

19 he go talk to him? I'm more, You can go talk to him,

20 Counsel, and see what he says. This is going to be a

21 Catch-22 with them; and whatever ends up finding, I will

22 be able to use it to sustain why the feasibility of a

23 retrospective hearing is even more --

24 Mr. Morrow, you're correct. He ought to

25 be able to talk to his client, but that doesn't have

16

1 anything to do with his competency back then.

2 THE COURT: Let me read this Green case

3 real quick.

4 MR. FELCMAN: Yeah.

5 THE COURT: All right. I think out of an

6 abundance of caution, I'm going to grant the defendant's

7 request to have a current competency examination

8 performed on Mr. Turner. Because this is a heavily

9 contested matter, what I'm going to order is that the

10 defense and the State each provide their own expert to

11 examine Mr. Turner to determine his present competency.

12 I will order a -- bench warrant him to

13 Fort Bend County, and I want this done as rapidly as

14 possible. We've delayed this matter quite a bit, and we

15 need to move forward, so submit your names for your

16 experts to the Court. I will order their examination of

17 Mr. Turner; and if you'll prepare a bench warrant today,

18 Mr. Felcman, I'll submit that order.

19 MR. MORROW: May I approach with this

20 motion, Judge?

21 THE COURT: Yes.

22 MR. FELCMAN: Does anybody have a

23 suggestion of exactly what they're supposed to be

24 looking for regarding his competency? Because this is

25 not a trial setting, this is not a defensible issue, is

17

1 it going to be the same standard, or is it going to be

2 something different?

3 THE COURT: It's going to be the same

4 standard, competency --

5 MR. FELCMAN: Same.

6 THE COURT: Because the request is a due

7 process request to assist counsel; and, therefore, it

8 would be the same standard as we use for the trial. And

9 I think that would -- In the abundance of caution, I

10 think that would be the best way to proceed; and we can

11 get this done at the earliest convenience; and dependent

12 upon their findings, we'll hold a hearing very shortly

13 thereafter to proceed to the feasibility part of this

14 issue.

15 MR. FELCMAN: Now, the five judges up

16 there used that against you. You said, "Abundance of

17 caution." They said that that meant that you had a good

18 faith doubt about the defendant's competency in this

19 matter. They used that, even though you multiple times

20 said, Listen, I'm just doing this out of an abundance of

21 caution.

22 THE COURT: The abundance of caution is to

23 make a full record for the Court of Criminal Appeals to

24 have before them. I have no doubt in my mind that he

25 was competent; but on the other hand, this is a question

18

1 that's been raised by nine folks smarter than I am, or

2 at least five of them; and we're going to give them all

3 the ammunition they can use.

4 MR. FELCMAN: Thank you, Judge.

5 MR. MORROW: Judge, can we approach off

6 the docket -- off the record about schedules?

7 MR. FELCMAN: One last thing, Judge.

8 THE REPORTER: On the record?

9 MR. FELCMAN: On the record, please, one

10 last thing.

11 I know Mr. Morrow's aware of it. There

12 are specific requirements for the qualifications of the

13 psychiatrist, okay, so that has to be met on those.

14 THE COURT: Off the record, Mindy.

15 THE REPORTER: Yes, sir.

16

17

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20

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19

1 THE STATE OF TEXAS §

2 COUNTY OF FORT BEND §

3 I, Mindy R. Hall, official court reporter in and for

4 the 268th District Court of Fort Bend County, State of

5 Texas, do hereby certify that the above and foregoing

6 contains a true and correct transcription of all

7 portions of evidence and other proceedings requested in

8 writing by counsel for the parties to be included in

9 this volume of the Reporter's Record in the above-styled

10 and numbered cause, all of which occurred in open court

11 or in chambers and were reported by me.

12 I further certify that this Reporter's Record of the

13 proceedings truly and correctly reflects the exhibits,

14 if any, offered by the respective parties.

15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $127.50 and

17 will be paid by Fort Bend County.

18 WITNESS MY OFFICIAL HAND this, the 18th day of

19 August, 2014.

20

/s/Mindy R. Hall______________

21 Mindy R. Hall, CSR

Texas CSR 8107

22 Official Court Reporter

301 Jackson

23 Richmond, Texas 77469

Telephone: 281.341.8611

24 Expiration: 12/31/2014

25

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