Opposition Brief — Randall Wayne Mays, Petitioner v. Texas
Supreme Court briefOct 9, 2019
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Appendix 1
AP-77,055
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/9/2018 12:37 PM
Accepted 4/11/2018 10:22 AM
DEANA WILLIAMSON
CLERK
No. AP-77,055
IN THE TEXAS COURT OF CRIMINAL APPEALS FILED
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
4/11/2018
DEANA WILLIAMSON, CLERK
RANDALL WAYNE MAYS,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
ON APPEAL FROM THE 392ND DISTRICT COURT OF HENDERSON
COUNTY DENYING RELIEF UNDER ARTICLE 46.05 OF THE
TEXAS CODE OF CRIMINAL PROCEDURE
APPELLANT’S OPENING BRIEF
OFFICE OF CAPITAL AND FORENSIC WRITS
Benjamin B. Wolff, Director
(No. 24091608)
Gretchen S. Sween, Counsel of Record
(No. 24041996)
gretchen.sween@ocfw.texas.gov
1700 N. Congress Avenue, Suite 460
Austin, Texas 78701
(512) 463-8600
(512) 463-8590 (fax)
Attorneys for Randall Mays
Oral Argument Requested
PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1, subdivision (a), the
parties to the district court’s order and to this proceeding, and their counsel, are
listed below.
(1) Randall Wayne Mays, No. 999535, Polunsky Unit, 3872 FM 350 South,
Livingston, Texas 77351, is the Appellant in this Court and was the
Defendant/Movant in the district court. Mays is represented by the Office of
Capital and Forensic Writs, 1700 N. Congress Avenue, Suite 460, Austin,
Texas 78701, Benjamin Wolff (director) and Gretchen Sween (Counsel of
Record). Sween also represented Mays in the 46.05 proceedings below.
(2) The State of Texas, by the Henderson County District Attorney’s Office, 109
West Corsicana, Suite 103, Athens, Texas 75751, is the Appellee and opposed
Mays’s motion under Article 46.05 in the district court. The State was
represented below by District Attorney Mark Hall and his predecessor,
District Attorney Scott McKee, who is now the elected judge of the 392nd
District Court. Mays anticipates Hall will appear for the State in this appeal.
i
TABLE OF CONTENTS
Parties and Counsel .................................................................................................... i
Table of Contents ...................................................................................................... ii
Index of Authorities ................................................................................................. vi
Statement Regarding Oral Argument .................................................................... viii
Statement of the Case............................................................................................... ix
Jurisdiction ............................................................................................................... ix
Issues Presented .........................................................................................................x
Procedural History .....................................................................................................1
Legal Standard ...........................................................................................................6
Statement of the Facts ................................................................................................8
I.
Mays Has a Long History of Mental Illness....................................................8
II.
Mays’s Persistent Delusions and Mental Impairments Are Captured in TDCJ
and Other Records....................................................................................................15
III. Mays Exhibited Symptoms of Mental Illness and Delusional Thinking When
Interviewed by Court-Appointed Experts. ...............................................................20
IV. All Three Court-Appointed Experts Found That Mays Has a Mental Illness
and Two Found Him Incompetent To Be Executed. ...............................................23
Dr. Agharkar diagnosed Mays with a mental illness and found him
incompetent to be executed. ..........................................................................23
Dr. Price diagnosed Mays with a mental illness. ................................25
Dr. Woods diagnosed Mays with a mental illness and found him
incompetent to be executed. ..........................................................................28
Argument..................................................................................................................31
ii
I.
The Trial Court Abused Its Discretion by Misrepresenting the Factual Record,
Ignoring the Reliable Experts’ Assessments, and Misapplying the Relevant Legal
Standard required by Panetti. ..................................................................................31
The trial court’s Order reflects disregard for the professional opinions
of the qualified experts who used a reliable methodology. ...........................31
1.
The Order ignores one mental health expert entirely.....................31
2.
The Order dismisses another mental health expert on indefensible
grounds. ....................................................................................................35
3.
The Order ignores not only Dr. Price’s conflict of interest but also
his deficient technique. .............................................................................38
The trial court’s Order disregards the fact that all of the court-appointed
experts found Mays to be mentally ill. ..........................................................44
The trial court’s Order misrepresents the factual record regarding how
the mental health experts reached the ultimate issue. ...................................50
1.
The Order inaccurately characterizes whether Mays brought up a
key topic with all three experts.................................................................50
2.
The Order incorrectly suggests that only Dr. Price “included” the
court’s “guidelines” in assessing Mays. ...................................................52
3.
Dr. Agharkar’s methodology included the 2003 Guidelines. ........55
4.
Dr. Woods methodology included the 2003 Guidelines. ..............56
5.
Only Dr. Price misused the 2003 Guidelines. ................................59
The trial court’s Order reveals a misapprehension of the governing
standard. .........................................................................................................61
1.
The trial court improperly relied on evidence that Mays has a bare
factual awareness that Texas plans to execute him. .................................61
2.
The trial court improperly relied on ancillary, irrelevant evidence. ..
........................................................................................................64
II.
The Dispositive Facts and Rationale Underlying Battaglia v. State Are
Readily Distinguishable from this Case...................................................................66
iii
The trial court undertook no legal analysis, so it failed to apprehend that
Battaglia is readily distinguishable. ..............................................................66
1.
Battaglia, unlike this case, specifically rests on findings that the
movant was malingering...........................................................................66
2.
Battaglia, unlike this case, emphasizes the movant’s superior
intellect as support for the proposition that he was malingering. ............71
Battaglia, unlike this case, involves a movant whose delusions seemed
to emerge in the lead up to his execution. .....................................................73
Battaglia, unlike this case, involves a movant whose delusions are
reputedly typical of a prison subculture. .......................................................74
If Battaglia can be used to justify affirming the trial court’s Order, then
Battaglia cannot be squared with the Supreme Court’s incompetency-to-beexecuted jurisprudence. .................................................................................76
Prayer .......................................................................................................................80
Appendices
Appendix A:
Order on TCCP Article 46.05 Hearing
Appendix B:
1-22-16 Status Hearing Transcript
Appendix C:
Agreed Order on Preliminary Article 46.05 Proceedings
with Exhibit A (P. Zapf, et al., Assessment of
Competency for Execution: Professional Guidelines and
an Evaluation Checklist 21 Behav. Sci. Law 103-120
(2003)
Appendix D:
DX35, Dr. Agharkar’s Report
Appendix E:
DX42, Dr. Woods’ Report
Appendix F:
DX39, Dr. Price’s Report
iv
Appendix G:
Trial Court’s Ruling Regarding Competency To Be
Executed, Texas v. Battaglia, No. F01-52159-H (Tex.
Dist. Ct. Nov. 18, 2016)
Appendix H:
State’s “Memorandum on CCP Article 46.05 Hearing”
v
INDEX OF AUTHORITIES
Federal
Barnard v. Collins, 13 F.3d 871 (5th Cir. 1994) .......................................................7
Billiot v. Epps, 671 F. Supp.2d 840 (S.D. Miss 2009).............................................61
Dunn v. Madison, 138 S. Ct. 9 (2017) .....................................................................70
Eldridge v. Thaler, No. H-05-1847, 2013 WL 416210 (S.D. Tex. Jan. 31, 2013)..70
Ford v. Wainwright, 477 U.S. 399 (1986) .............................................. 6, 76, 77, 78
Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017) ............70
Moore v. Texas, 137 S. Ct. 1039 (2017) ..................................................................78
Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006) ........................................................7
Panetti v. Quarterman, 551 U.S. 930 (2007)............................................ 3, 7, 62, 76
Panetti v. Quarterman, No. A-04-CA-042-SS, 2008 WL 2338498 (W.D. Tex. Mar.
26, 2008) ..............................................................................................................69
Wood v. Quarterman, 572 F. Supp.2d 814 (W.D. Tex. 2008) ................................64
Wood v. Thaler, 787 F. Supp.2d 458 (W.D. Tex. 2011)..........................................69
State
Battaglia v. State, 537 S.W.3d 57 (Tex. Crim. App. 2017)............................. passim
Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238 (Tex. 1985) .............8, 31
Etheredge v. State, 542 S.W.2d 148 (Tex. Crim. App. 1976) .................................75
Garza v State, 996 S.W.2d 276 (Tex. App.—Dallas 1999, pet. refused) ................49
Gaston v. State, 63 S.W.3d 893 (Tex. App.—Dallas 2001, no pet.) .......................49
Green v. State, 374 S.W.3d 434 (Tex. Crim. App. 2012)............................... 7, 8, 64
Hernandez v. State, 939 S.W.2d 173 (Tex. Crim. App. 1997) ................................76
Holloway v State, 666 S.W.2d 104 (Tex. Crim. App. 1984) ...................................49
In re R.A., 417 S.W.3d 569 (Tex. App.—El Paso 2013, no pet.) ............................49
Mays v. State, 476 S.W.3d 454 (Tex. Crim. App. 2015) .....................................2, 64
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) .........................8, 31
SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838 (Tex. App.—Dallas
1991, no writ) .......................................................................................................49
Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000).................................65
Statutes & Rules
TEX. CODE CRIM. PROC. art. 46.05 ................................................................... passim
TEX. R. EVID. 201 .....................................................................................................49
vi
Other Authorities
Assessment of Competency for Execution: Professional Guidelines and an
Evaluation Checklist, 21 BEHAV. SCI. LAW 106 (2003) ........................................2
Patricia Zapf, Elucidating the Contours of Competency for Execution: The
Implications of Ford and Panetti for Assessment, 37 THE JOURNAL OF
PSYCHIATRY & LAW 269 (Summer-Fall 2009) ............................................. 54, 60
vii
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument. See TEX. R. APP. PROC. 68.4(c). The issue
of incompetency-to-be-executed is rarely litigated, and the facts in this case bear
little resemblance to those underlying Battaglia v. State, this Court’s last
adjudication in an Article 46.05 proceeding. Two of three court-appointed experts
found Mays incompetent to be executed; the third, who found Mays competent, was
laboring under an undisclosed conflict of interest and a demonstrably flawed
methodology. No expert found that Mays was malingering. The trial court’s sparse
order rests on several material misrepresentations of the factual record and
demonstrates an alarming disregard for the relevant legal standard. Moreover, this
case raises significant issues applicable beyond the incompetency-to-be-executed
context when a trial court’s conclusion is at odds with the opinions of mental health
experts whose appointment is mandated by state statute and federal constitutional
law. The complexity of the factual record and importance of the issues suggest that
argument will assist the Court in the decisional process.
viii
STATEMENT OF THE CASE
Randall Mays is currently confined under a sentence of death pursuant to the
judgment of the 392nd District Court, Henderson County, Texas, cause B-15,717.
Judge Carter Tarrance presided over the trial. 32 RR 76.1 After a date was set for
Mays’s execution, his incompetency-to-be-executed was raised under Article 46.05
of the Texas Code of Criminal Procedure. On his behalf, Mays’s counsel now asks
this Court to review the trial court’s order finding him competent. See APPENDIX A
[Order]. The Order was entered by Senior Judge Joe Clayton, sitting by assignment.
Judge Clayton was assigned to preside over the proceeding midstream because the
elected judge in the 392nd district court of Henderson County, the Honorable Scott
McKee, had been the elected district attorney who initially litigated against the
Article 46.05 motion. Judge McKee took the bench when the original district court
judge, who had presided over Mays’s trial and much of the 46.05 proceeding, the
Honorable Carter Tarrance, retired.
JURISDICTION
This Court has jurisdiction to review the trial court’s order denying Mays’s
motion regarding his competency to be executed. See Druery v. State, 412 S.W.3d
523, 532-33 (Tex. Crim. App. 2013); TEX. CODE CRIM. PROC. art. 46.05.
1
Citations to “RR” are to the Reporter’s Record at trial. For instance, “32 RR 76” refers to
volume 32, page 76 of the Reporter’s Record. Citations to “EHRR” are to the Reporter’s Record
for the 46.05 evidentiary hearing.
ix
ISSUES PRESENTED
Three court-appointed mental health experts opined that Mays is mentally ill, a
conclusion supported by decades of mental health history, including two stays in
psychiatric hospitals in the 1980s and diagnoses of paranoia, schizophrenia,
psychosis, dementia, and neurocognitive disorder. Two experts concluded that Mays
is currently incompetent to be executed because he lacks a rational understanding of
the connection between his crime and punishment. A third expert found that Mays
was competent to be executed. That expert was, however, laboring under a
concerning conflict of interest that was not disclosed to the court at the time of his
appointment and who used an unreliable methodology. No expert found that Mays
was malingering. After a four-day evidentiary hearing and the introduction of
voluminous materials into evidence, the trial court issued a two-page order
announcing its conclusion that Randall Mays is competent to be executed. APPENDIX
A at 2. The Order is devoid of legal analysis. The specific issues presented in this
appeal are:
I.
Did the trial court abuse its discretion by misapprehending the factual record,
ignoring the reliable experts’ assessments, and failing to apply the relevant
standard dictated by Panetti v. Quarterman, in concluding that Mays is
competent to be executed?
II.
Are the dispositive facts and rationale underlying this Court’s decision in
Battaglia v. State readily distinguishable from this case?
x
PROCEDURAL HISTORY
Randall Mays was convicted on May 17, 2007, of capital murder arising from
the shooting deaths of two police officers. 25 RR 143, 157. He was sentenced to
death less than a year later. 32 RR 76.
On July 10, 2014, the trial court signed a warrant for Mays to be executed on
March 18, 2015.
On February 10, 2015, the Office of Capital and Forensic Writs (OCFW) took
over Mays’s representation. Thereafter, a Motion Re Competency to Be Executed
Pursuant to Code of Criminal Procedure Article 46.05 was filed, arguing that
substantial evidence demonstrated that Mays was currently incompetent to be
executed. CR 2 7-32. On February 25, 2015, the State filed an opposition. CR 33-47.
At a hearing two days later, the trial court concluded that Mays had made a
showing that “some doubt is raised in the mind of a reasonable man” about Mays’s
competency to be executed but found that the motion did not raise a “substantial
doubt.” Hearing on Motion Re Competency To Be Executed, 2-27-15.
The matter was then appealed to this Court, which first stayed Mays’s
execution and then, on December 16, 2015, reversed the trial court, holding that
Mays had made a “substantial showing” of his current incompetency-to-beexecuted. This Court also mandated further proceedings under Article 46.05. The
2
“CR” refers to the Clerk’s Record in the Article 46.05 proceeding.
1
Court’s opinion was published as Mays v. State, 476 S.W.3d 454 (Tex. Crim. App.
2015).
Following the remand, the trial court set a status hearing. In advance of that
hearing, Mays filed a Motion to Compel Expedited Discovery to Facilitate Article
46.05 Proceedings and a Motion Outlining Proposal for Article 46.05 Proceedings.
CR 54-77, 79-87. The latter included a proposal for the court appointment of experts
to evaluate Mays as Article 46.05(f) requires. The proposal cited several articles,
including P.A. Zapf, et. al, Assessment of Competency for Execution: Professional
Guidelines and an Evaluation Checklist, 21 BEHAV. SCI. LAW 106 (2003) (“the 2003
Guidelines”).
At the January 22, 2016, hearing, Judge Tarrance recognized that the court
was statutorily required to appoint “at least two mental health experts” to conduct
an evaluation in advance of any hearing regarding the merits of Mays’s claim. See
TEX. CODE CRIM. PROC. art. 46.05(f). To comply with this mandate, Judge Tarrance
directed each party to submit a list of at least three experts they deemed qualified to
conduct the requisite mental health evaluation. See APPENDIX B [1-22-16 Status Hrg
Trans.].
2
On or around February 12, 2016, Mays’s counsel submitted a list of three
names and the State submitted a list of three names. CR 88-112; CR 145-167; DX46;
DX47. 3
On February 18, 2016, Judge Tarrance signed an Agreed Order on Preliminary
Article 46.05 Proceedings, to which a copy of the 2003 Guidelines was attached as
an exhibit at the suggestion of Mays’s counsel. CR 122-144; APPENDIX C [Agreed
Order with 2003 Guidelines]. The experts were directed to use the 2003 Guidelines,
including sections one-three, excluding section four, of the checklist in the appendix,
to assist in conducting their evaluations. Judge Tarrance recognized that section four,
questions about the underlying offense and about counsel, are relevant to
incompetency-to-stand-trial inquiry but not to incompetency-to-be-executed. See
APPENDIX B at 19.
The Agreed Order also contained the following referral questions:
1. Does Mays suffer from a mental illness or mental impairment?
2. If so, does Mays’s mental illness or mental impairment deprive him
of a rational understanding of the connection between his crime and his
punishment, i.e., “if [Mays’s] mental state is so distorted by a mental
illness that his awareness of the crime and punishment has little or no
relation to the understanding of those concepts shared by the
community as a whole?” Panetti v. Quarterman, 551 U.S. 930, 958-59
(2007).
3
“DX” refers to exhibits Mays introduced into evidence at the 46.05 hearing.
3
In answering these referral questions, each expert was directed to “consider whether
Mays’s mental illness or mental impairment deprives him of: (1) a rational
understanding that he is to be executed and that the execution is imminent or (2) a
rational understanding of the reason he is to be executed.” Id.
The Agreed Order also included various directives regarding logistics. For
instance, each expert was to work independently and then convey his report directly
to the court, which would convey the reports to counsel for Mays and for the State
when they were all complete. Id.
In a letter dated February 18, 2016, the trial court notified the parties that it
had selected one name from Mays’s list of proposed experts (Bhushan S. Agharkar,
M.D.) and one name from the State’s list (Randall Price, Ph.D.). Those two experts,
per the Agreed Order, were then directed to designate a third expert. Dr. Agharkar
and Dr. Price together proposed George Woods, M.D. Each of these three experts
was then appointed by the court and directed to provide an objective assessment of
Mays’s competency to be executed.
On October 28, 2016, Dr. Woods provided notice to the court that, due to
family medical issues, he was forced to withdraw from the case. Subsequently, Dr.
Agharkar and Dr. Price conferred, agreed that J. R. Merikangas, M.D. could replace
Dr. Woods, and Dr. Merikangas was eventually appointed.
4
At the end of 2016, Judge Carter Tarrance retired from the bench. Meanwhile,
counsel for the State, the elected District Attorney for Henderson County, Scott
McKee, had been elected to district court judge of the 392nd District Court, and took
office on January 1, 2017. Judge McKee thereafter recused himself from this
proceeding, and Senior Judge Joe D. Clayton was appointed to preside. CR 167.
Subsequently, Dr. Merikangas had to withdraw before examining Mays. On
March 8, 2017, the court reappointed Dr. Woods and directed him to submit his
evaluation to the court on or before May 1, 2017.
After reviewing relevant materials produced jointly by the parties, and after
clinical interviews with Mays at the Polunsky Unit, each of the three experts
prepared a report. See APPENDIX D [Dr. Agharkar’s Report]; APPENDIX E [Dr.
Woods’s Report]; APPENDIX F [Dr. Price’s Report]. These reports were not
produced to the parties until all three reports were first submitted to the court. On
May 5, 2017, Judge Clayton conveyed copies of the three experts’ reports to counsel
for both parties. He also set a hearing for June 14, 2017.
The experts’ reports demonstrated that all three had found that Mays suffered
from a mental illness; two of the three (Dr. Agharkar and Dr. Woods) had concluded
that Mays was incompetent to be executed; and a third expert (Dr. Price) had
concluded that Mays was competent to be executed. See APPENDIX D; APPENDIX E;
APPENDIX F.
5
The trial court thereafter ordered that an adversarial hearing would commence
on August 9, 2017, in which both sides could present evidence and examine
witnesses. The court received documentary evidence and listened to testimony on
August 9-11, 2017. Closing arguments were held on August 12, 2017. See 1-19
EHRR. Thereafter, counsel for Mays submitted Proposed Findings of Fact and
Conclusions of Law, which were filed on September 20, 2017. CR 203-58. Counsel
for the State submitted a “Memorandum on CCP Article 46.05 Hearing” directly to
the court, which was served on Mays’s counsel but not filed with the clerk of court.
See APPENDIX H.4 On October 2, 2017, the trial court entered an “Order on TCCP
Article 46.05 Hearing.” APPENDIX A. This appeal followed.
LEGAL STANDARD
As a matter of state and federal law, “[a] person who is incompetent to be
executed may not be executed.” TEX. CODE CRIM. PROC. art. 46.05(a); Ford v.
Wainwright, 477 U.S. 399, 409-10 (1986). Article 46.05 defines “incompetent to be
executed” as a defendant who “does not understand: (1) that he or she is to be
executed and that the execution is imminent; and (2) the reason he or she is being
executed.” TEX. CODE CRIM. PROC. art 46.05(h).
4
The State’s six-page memorandum contains no citations to the trial record or to the record
developed during the 46.05 evidentiary hearing.
6
The proper understanding of “incompetent to be executed” has developed
through case law. After the Supreme Court decided Ford, the Fifth Circuit
interpreted the governing standard as being that a death-sentenced individual need
only be aware “that he [is] going to be executed and why he [is] going to be
executed.” Panetti v. Dretke, 448 F.3d 815, 819 (5th Cir. 2006) (citing Barnard v.
Collins, 13 F.3d 871, 877 (5th Cir. 1994)); see also Green v. State, 374 S.W.3d 434,
442 (Tex. Crim. App. 2012) (noting that federal district court in Panetti found that
“the Fifth Circuit test for competency to be executed requires the petitioner know no
more than the fact of his impending execution and the factual predicate for the
execution”) (internal citations omitted). But that test was soon rejected.
As the Supreme Court subsequently clarified:
[T]he Ford opinions nowhere indicate that delusions are irrelevant to
“comprehen[sion]” or “aware[ness]” if they so impair the prisoner’s
concept of reality that he cannot reach a rational understanding of the
reason for the execution. If anything, the Ford majority suggests the
opposite.
Panetti v. Quarterman, 551 U.S. 930, 958 (2007).
Together Ford and Panetti make clear that, when a prisoner alleges
incompetency-to-be-executed due to a mental illness or impairment, examinations
must inquire into: (1) whether the prisoner suffers from a mental illness or
impairment; and (2) whether that mental illness so distorts the prisoner’s mental state
that “his awareness of the crime and punishment has little or no relation to the
7
understanding of those concepts shared by the community as a whole.” Panetti, 551
U.S. at 959. In short, there must be an inquiry into whether a prisoner lacks a
“rational understanding” of the connection between his crime and his punishment.
“It is not enough for the prisoner to merely recite the proffered reason for his
execution.” Battaglia v. State, 537 S.W.3d 57, 65 (Tex. Crim. App. 2017).
In reviewing decisions under Article 46.05, this Court has previously found
that the abuse of discretion standard applies. Green, 374 S.W.3d at 441. A trial court
abuses its discretion by acting “without reference to any guiding rules and
principles” or where “the act was arbitrary or unreasonable.” Downer v. Aquamarine
Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); see also Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op’n on rehearing) (finding an
abuse of discretion and warning against trial court mistaking “common experience”
for what “is really no more than the operation of a common prejudice”).
STATEMENT OF THE FACTS
Mays Has a Long History of Mental Illness.
Records introduced into evidence during the adversarial hearing show that
Mays has a long history of serious mental illness—including multiple commitments
to a state psychiatric hospital decades before he was charged with a capital offense.
More recent evidence shows deteriorating mental functioning.
8
In July 1983, Mays was involuntarily committed to the Terrell State Hospital,
a state-sponsored psychiatric inpatient unit. Examining physicians found him
“delusional, hallucinating, combative, and a danger to self and others” and diagnosed
him with “hallucinosis.” Id. at RM186-87, He was also described as pacing, talking
to himself, refusing to communicate with others, and claiming “that the Devil had
possession of him.” Id. at RM193. Ten days after his commitment, Mays was
discharged and instructed to return to the psychiatric hospital if he experienced
psychosis in the future. Id. at RM195.
Two years later, Mays was involuntarily admitted to the Terrell State Hospital
due to “see[ing] things,” auditory hallucinations, and behaving wildly. Id. at RM23334, 247. He was accompanied by officers who described him as “spaced out on
crystal.” Id. at RM245. He was diagnosed as having a drug addiction, but soon left
the hospital before he was released. Id. at RM245.
By 1991, Mays, who had turned to drugs after his brother was shot and bledout in Mays’s arms, quit using drugs altogether. 2 EHRR 150-52; 31 RR 90, 113-19.
Even so, his odd behavior persisted over subsequent decades. Specific examples of
Mays’s irrational behavior offered at trial include his:
• trying to attack a man on television after seeing him slap a woman;
• continuously walking around with an Icy-Hot patch on his head to help with
“headaches”;
9
• making random, incoherent digressions in the middle of conversations and
then walking away;
• getting “a weird look in his eyes” like “he wasn’t there;” and
• walking up to the bride and groom in the middle of his daughter’s wedding
ceremony to congratulate them then standing, transfixed, in the middle of the
aisle.
31 RR 59, 69-70, 92, 119, 167-68, 174. Those who knew Mays in and around the
small community of Athens, Texas described him as acting “strange,” “peculiar,”
and “crazy” well before the underlying offense occurred. See, e.g., 31 RR at 56, 9192, 119. He did not, however, receive mental health treatment during those years.5
Mays’s odd behavior, paranoia, and delusional thinking was known to law
enforcement in his community. DX21-DX26. For instance, neighbors repeatedly
reported Mays for shooting his shotgun toward vehicles or into the air. DX21 at
RM2818, 2819, 2826; DX22 at RM2856-57. Police also knew Mays as a frequent
911-caller: about suspicious traffic passing his house out in the country, about fumes
from burns that were choking him, about suspected break-ins, gas odors, generally
suspicious activity, and his inability to sleep. Id. at RM2831-52. On December 25,
2001, a neighbor called the police to report that Mays “just came to [the neighbor’s]
5
During the 46.05 evidentiary hearing, Dr. Woods opined regarding social conditions that
make this a common phenomenon, including a shortage of psychiatrists and psychologists,
particularly in rural communities for lower-income people. 3 EHRR 136, 221-23, 227. Dr. Price
also acknowledged that it was not unknown for someone to go for years with mental health
problems and yet not seek or receive treatment. 3 EHRR 54.
10
residence and gave him a 1400 lb steer and a bull calf” and said Mays “has been
acting strange the last few days.” Id. at RM2822.
At the time of the offense, Mays lived on the edge of town on property
surrounded by a tall, metal parameter fence covered with “Keep Out” signs, security
cameras, and motion-activated lights. 33 RR 141; DX20-DX22. On May 17, 2007,
after a neighbor complained yet again that Mays had been shooting into the dirt,
police came on to his property. When they attempted to arrest him, chaos ensued.
DX23.
The tragic outcome of this mental health crisis was the deaths of two police
officers and injury to another as well as to Mays. Id.; 4 EHRR 22. Afterwards, Mays
was transported to East Texas Medical Center. While hospitalized, a nurse observed
him “talking to someone who was not there.” DX4 at RM260. Hospital staff also
noted: “[Patient] lying in bed, screaming for help. [The patient] [s]tates ‘I think
people are trying to poison me. I’ve wrote help on my tray, please try to get someone
from outside in here to talk to me. I think they killed my wife.’” Id. at RM256. Soon
thereafter, Mays was discharged to the Smith County Jail. See id. at RM249.
While awaiting trial, Mays was prescribed Zoloft, an anti-depressant, and
Risperdal, an anti-psychotic. Two months later, the dosage of his anti-depressant had
to be increased. DX8. He was also diagnosed with “Organic Brain Syndrome,” an
archaic term for “dementia.” 3 EHRR 151-52. Dr. Vail, the treating psychiatrist,
11
concluded that Mays had a severe mental illness and diagnosed him with depression
and psychotic disorder NOS (not otherwise specified). DX4 at RM136-38.
Mays’s appointed trial counsel, Bobby Mims, noticed that Mays was mentally
ill during the representation. 4 EHRR 7. Mims saw that Mays could not understand
basic directives, like avoiding talking about his case in public. Id. at 8; see also DX33
(DVD of NBC footage). Mims also observed Mays’s paranoia, reflected in his
reluctance to sign releases but also when it came to accepting treatment after he had
asked for help. Id. at 17. See, e.g., DX8 at RM 621:
12
Shortly before trial, the defense team realized that they had likely missed
something in the medical records: the reference to “Organic Brain Syndrome.” Id. at
9-10; see also DX4 at RM294. But when they tried to obtain Mays’s consent to
undergo testing, Mays’s paranoia was triggered again; he, who was ordinarily very
meek and polite, became uncooperative and would not sign releases. 4 EHRR 1112.
At the time, Mims did not recognize that he should have had his client tested
for incompetency-to-stand-trial and otherwise have him evaluated by a mental health
professional. 4 EHRR 12-16.
At trial, Dr. Vail, a treating psychiatrist retained by the jail, testified to Mays’s
delusions and auditory hallucinations, as well as his fear that he was being poisoned
and “plotted against.” 31 RR 21-23. She also testified about efforts to treat him with
anti-psychotic medication. 31 RR 25.
Other mental health experts testified at trial about Mays’s history of mental
illness; but these experts had not actually met with Mays to evaluate him. Defense
counsel’s decision to retain mental health experts but deprive of access to the client
arose from counsel’s fear of the implications of the Lagrone case,6 a decision Mays’s
trial counsel came to regret because it was based on a misunderstanding of that case.
29 RR 8-26; 31 RR 123-37; 4 EHRR 14-16.
6
See Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997).
13
During trial proceedings, Mays’s team had issues with him arising from his
mental health problems: “All of a sudden, Randall just changed. And I have never
seen anything like it. It’s almost like – he’s a very meek man, very humble, very
courteous, very polite, very responsive, at least to counsel at that time. . . . All of the
sudden he just changed.” 4 EHRR 21. At trial, his sister testified about a history of
similar behavior:
Q. Describe that for the jury. What happens to him when he suddenly
changes?
A. I’m not sure, but he gets a look on his face, and it’s -- and you can
be talking to him and discussing, you know, what he did that day or
what I did that day, and then all of a sudden, he just stares at you in this
weird -- and he goes to saying stuff, and you don’t know what he’s
talking about. And then he may just turn around and walk off.
Q. Have you ever tried to get him into mental health?
A. No. . . . If he talks and says crazy stuff, I told him, “I don’t want to
hear that. You know, that’s crazy” or -- and I may hang up on him if
we’re on the phone, you know.
Q. Be fair to say he’s a pretty peculiar fellow?
A. He is, but he’s very loving, and, you know, he has a good heart. I
don’t understand how all this stuff like this can happen.
31 RR 91-92. Mays’s reaction to hearing this testimony was to blurt out “I love you”
in court. Id. Several times during the trial, Mays was unable to control his emotions.
See, e.g., 32 RR 85 (removing Mays from the courtroom for sobbing and calling out
“I’m sorry for your loss” during victim-impact statements); 4 EHRR 20.
14
Mays’s Persistent Delusions and Mental Impairments Are Captured
in TDCJ and Other Records.
After Mays was sentenced to death and confined to the custody of the Texas
Department of Criminal Justice (TDCJ), he was given a mental health screening
instrument by TDCJ’s agent, the University of Texas Medical Branch (UTMB).
DX9. The results show that Mays had at least below-average intelligence and belowaverage executive functioning. Id. at RM1152. UTMB recommended that he be
evaluated further, but no records suggest that this recommendation was followed. Id.
In 2009, a neuropsychologist retained by his post-conviction counsel, Dr. Joan
Mayfield, gave Mays a full battery of neuropsychological tests. Her test results
demonstrated that Mays had major neurocognitive impairments as indicated by
objective testing, and she diagnosed Mays with Dementia NOS secondary to chronic
amphetamine and related sympathomimetic abuse, as well as Depressive Disorder
NOS. Id. at RM176-78. Dr. Mayfield also noted that Mays was “hesitant to answer
any personal questions or engage in conversation.” DX4 at RM175. During state
writ proceedings, Dr. Mayfield testified that Mays was “withdrawn . . . and
sometimes hesitant to talk about his history” but “very polite.” DX6 at RM529. She
also described him as having a “loss of cognitive functioning” exacerbated by
“novel, complex, difficult, [and] stressful situations.” Id. at RM548, 550.
Since then, Mays has continued to exhibit signs of severe mental illness and
delusional thinking. For instance, in November 2011, Mays sought treatment from
15
TDCJ/UTMB for trouble breathing due to being “allergic to ozone.” DX4 at RM298.
Likewise, in June 2012, TDCJ recorded that he complained: “I am having problems
breathing my head hurts and my chest hurts I am getting dizzy I believe the air vented
in is the problem and I want to be moved.” DX17 at RM2258; see also DX4 at
RM304. According to medical staff, Mays did not exhibit any signs of respiratory
issues, however. DX4 at RM304. UTMB personnel described Mays’s affect as
“peculiar” and diagnosed him with an unspecified “mental illness.” DX7 at RM6079. But there was no follow-up.
Another recurrent theme in the prison records is Mays’s concern about
“someone intentionally put[ting] something in his food to make him sick.” DX4 at
RM307. Medical staff noted, “[Mays] does believe someone intentionally put
something in his food to make him sick. When asked who he thought did such a
thing, he said ‘the offenders, and maybe some officers.’ When asked if he felt he had
been singled out or if it was a general problem with the food he said ‘maybe they
singled me out because I won’t participate in their games.’” Id.
Mays continued to experience specific persecutory delusions, and in the
summer of 2014, UTMB staff recommended that he be “evaluated by mental health”
due to his preoccupation with “gases in the air.” DX4 at RM308. But there is no
record of Mays receiving these services.
16
Mays’s delusions are also evident in letters to family members sent from death
row. In a December 2, 2014, letter to his sister, he states
DX4 at RM169. This letter, detailing Mays’s desire to start a business in the future,
was written shortly before his scheduled execution date (which had, by then, been
set for March 2015).
Mays again wrote to his sister on December 29, 2014:
Id. at RM170-71. That is, two and a half months before his scheduled execution date,
Mays was under the impression that he would still have the opportunity to (1) start
a business and (2) physically build a windmill for his sister.
17
On January 25, 2015, Mays again wrote to his sister about his proposed
business venture. Id. at RM172. At that time, his renewable energy obsession
appears repeatedly in letters to family and friends. See, e.g., DX4 at RM169-71;
DX12 at RM2069, RM2085, RM2086, RM2097, RM2115, RM2133.
Shortly before his scheduled execution, on February 5, 2015, an attorney
named Katherine Black met with Mays at the Polunsky Unit for approximately two
hours. Throughout the meeting, Mays had difficulty speaking. During frequent
pauses, Mays would “grab his head and wrinkle his face with his eyes closed.” DX4
at RM133. Mays admitted that he heard voices that he connected to “evil spirits.”
Id. To quell the voices, he would “stuff his ears with paper, put socks over his head,
lie with his head next to the fan, flush the toilet, or make noise.” Id.
Mays also complained to Black that ozone in the air filled his prison cell with
carbon monoxide and caused him pain—a complaint consistent with previous
complaints to TDCJ and UTMB personnel that had prompted the latter to
recommend a mental health evaluation in 2014, which was never undertaken, and
consistent with delusions about noxious air predating his incarceration. Id. at
RM134; see also DX22 at RM2831-52. Additionally, Mays brought up his plans for
a renewable energy business. Mays’s answers to Black’s questions were “vague and
muddled” and suggested disorientation with respect to time. For example, he stated
that he was sixteen years old when his brother Noble died in 1995, when in fact
18
Mays would have been thirty-six years then. Id. When asked why he was in prison,
Mays failed to give a clear answer and seemed to be confused by the question. Id.
Mays’s letters to family members are peppered with complaints about guards
conspiring to poison him, poisoned air in his cell, and other signs of chronic
paranoia, for instance, suggesting to his mother that ISIS Muslims everywhere might
be causing the problems a relative was having with his vehicle:
DX12 at RM2128.
More recently, Mays, who is indigent, has taken to writing letters offering to
pay people large sums, including his former lawyer Bobby Mims, if they will help
Mays develop his renewable energy business or bring disability lawsuits. 4 EHRR
33-38. In July 2017, Mays wrote to Mims, who has not represented Mays since his
trial in 2008, offering $10,000 if Mims would help him “go back to work in Hopkins
County”:
19
DX50; see also DX52. Mays, who is indigent, would have no way under TDCJ rules
to send money from Polunsky to someone in the free world even if he had money to
send. 3 EHRR 59, 66.
Mays Exhibited Symptoms of Mental Illness and Delusional Thinking
When Interviewed by Court-Appointed Experts.
Three court-appointed mental health experts were tasked with reviewing
copious records and then interviewing and assessing Mays. In each of these
interviews, he exhibited symptoms consistent with his history of paranoia and
delusional thinking.
Court-appointed expert Dr. Agharkar met with Mays first on June 6, 2016.
During this initial interview, Mays described hearing the voice of God intermittently
since he was a child. Dr. Agharkar found that Mays appeared paranoid and refused
to answer or elaborate on many questions. DX36 at 1. 7 But Mays did tell Dr.
Agharkar that he had received a patent for a renewable energy design, that it was not
7
Dr. Agharkar’s report is attached as APPENDIX D.
20
for sale, and, importantly, that the State was trying to execute him to prevent him
from making his invention. Id. Dr. Agharkar interviewed Mays a second time on
August 18, 2016. During this second interview, Mays displayed more odd behavior.
In addition to expanding on his belief that the State was trying to execute him
because of his wind energy design, he thought that Dr. Agharkar’s shirt had a secret
code on it, and he did not believe Dr. Agharkar when he denied there being a code:
at one point, this was the second interview, [Mays] began responding
to some writing that was on my T-shirt. There was a series of numbers,
and he asked me about those. He said, What does this mean? And I
looked down, and I said, It’s the manufacturer of the shirt. I don’t know.
And he clearly did not believe me, and he absolutely believed there was
some sort of code there that he -- that I was pretending not to know
about, really. That’s called ideas of reference, and that’s actually a very
well-known psychotic symptom as well.
2 EHRR 54-55.
Court-appointed expert Dr. Price, whom the State had recommended, met
with Mays on September 13, 2016. Although Mays remained guarded during Dr.
Price’s short interview, Dr. Price’s notes show that Mays described his breathing
problems caused by the “ozone” and “acid in the air” and how he had had “problems
w/breathing since in 20s.” DX40.8 Dr. Price noted that Mays “cried” spontaneously
at one point, but then said he did not want to talk about his family, the past, what it
means to be executed, and many other subjects. Id. When Mays was asked about the
8
Dr. Price’s report is attached here as APPENDIX F.
21
details of the crime, Dr. Price reported that Mays said they “say that I murdered 2
police officers.” Id. He also told Dr. Price that “the Bible says the devil is trying to
kill me.” Id.
Court-appointed expert Dr. Woods met with Mays on April 27, 2017. During
Dr. Woods’s clinical interview, Mays described developing a wind device to be used
in the energy sector. He believes it is worth “billions of dollars.” DX42. 9 When asked
if he was willing to sell the technology to Texas to save his life, he asked, “How
much are they willing to pay?” He then said, “No.” He then explained his belief that
Texas is trying to kill him to keep the device from coming to market. He believed
he had a 50/50 chance of getting out and selling his technology. Id. at 19-20.
Mays explained to Dr. Woods his belief that this wind device would hurt the
oil industry tremendously and, therefore, he is being conspired against. Mays
acknowledged working on his project more than his legal case and stated that he
reads about little else, except for the Bible. When asked if he would trade the secrets
of his device in return for his life, he replied, “No.” Id.
When Dr. Woods asked Mays how the State of Texas found out about his
windmill business, he said they copied his mail to his sister. He said he knew they
read it. He then elaborated about his attempts to bring his sister into the business
because she had worked in the “electrical” business for more than twenty years. He
9
Dr. Woods’s report is attached as APPENDIX E.
22
reported that she said she was “too busy with other things like family” to be part of
his business, but he hoped to get her help when he was released. In reality, Mays’s
sister has long worked in plumbing sales, not electricity, and Mays was not going to
be released. Id. at 20; DX4 at RM198.
During Dr. Woods’s clinical interview, Mays also showed a profound lack of
understanding about his health situation. He said he took Ibuprofen for his “asthma,”
attributing his breathing problems to “different air in the cells.” Id.
All Three Court-Appointed Experts Found That Mays Has a Mental
Illness and Two Found Him Incompetent To Be Executed.
Dr. Agharkar diagnosed Mays with a mental illness and found him
incompetent to be executed.
Dr. Agharkar concluded that Mays has a mental illness or mental impairment.
Specifically, he found that Mays suffers from both schizophrenia and a
neurocognitive disorder, dementia. 2 EHRR 64.
Dr. Agharkar’s report describes a history of symptoms of mental illness
captured in the records and corroborated by his clinical interview of Mays. These
symptoms include paranoia, delusions, hallucinations, and persecutory beliefs.
DX35 at 2-4. “Mays appears to have had a long history of psychotic mental illness
most consistent with Schizophrenia. There are a number of reports of odd and bizarre
behavior dating back at least thirty years.” Id. at 5. Dr. Agharkar also noted that
23
“Mays has a severe and persistent deteriorating brain disease,” specifically dementia.
Id. at 6.
Dr. Agharkar testified as to his diagnosis at the hearing. He explained that
dementia is a degenerative brain disease that is debilitating over time; dementia
cannot be cured and is irreversible. 2 EHRR 41-42. He gave Mays screening tests,
whose results were consistent with neuropsychological testing undertaken by Dr.
Mayfield and Dr. Woods; those tests revealed a major neurocognitive disorder. Id.
at 41, 53.
Dr. Agharkar opined that, to qualify for a diagnosis of schizophrenia, the
individual needs to show just two of five symptom clusters identified in the fifth
edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). 10 2
EHRR 64. Dr. Agharkar found that Mays exhibited three symptom clusters:
hallucinations, delusions, and disorganized thinking. Id. Because Mays had
exhibited these symptoms for longer than six months, Dr. Agharkar believed a
diagnosis of schizophrenia was justified. The records show signs of Mays’s mental
illness over time, including paranoia, exemplified by Mays’s frequent complaints
about being poisoned by guards or the environment. 2 EHRR 39. Dr. Agharkar also
found a history of delusions and hallucinations. Id. In Dr. Agharkar’s professional
10
The DSM is published by the American Psychiatric Association (APA). 3 EHRR 83. It
is now in its fifth edition: the DSM-5.
24
opinion, the consistency of reported symptoms of mental illness supported the
conclusion that Mays was not malingering regarding his symptoms. Id. at 40. He
also opined that Mays qualified for a diagnosis of schizophrenia. Id.
Dr. Agharkar concluded that Mays does not have a rational understanding of
why he is to be executed:
while Mr. Mays knew where he was located and that the state of Texas
intended to execute him, he did not evidence a rational understanding
as to why. His beliefs about why he is to be executed are rooted in
delusional thinking, the product of a severe psychotic mental illness and
a damaged brain. Indeed, it is particularly his significant brain damage
that makes it extremely unlikely that Mr. Mays will ever rationally
understand why he is to be executed as this condition exacerbates his
paranoia and severely hampers his ability to rationally consider his
present situation. It is therefore my opinion, to a reasonable degree of
psychiatric certainty, that Mr. Mays is incompetent to be executed.
APPENDIX D at 6. Therefore, Dr. Agharkar concluded that Mays is not competent to
be executed under the controlling standard.
Dr. Price diagnosed Mays with a mental illness.
Dr. Price concluded that Mays has a mental illness or mental impairment.
Specifically, he concluded that Mays has mild Neurocognitive Disorder among other
mental illnesses and a paranoid personality disorder. 3 EHRR 56; DX39.
Dr. Price based his diagnosis, in part, on a one-page dementia screening
instrument that he administered to Mays, the Montreal Cognitive Assessment
(MoCA). Dr. Price made multiple math errors in assessing the results of this test,
thereby artificially inflating Mays’s score. 2 EHRR 193; 3 EHRR 94; 3 EHRR 203.
25
Despite his scoring errors, Dr. Price concluded that Mays has a neurocognitive
disorder.
Dr. Price found no fault with Dr. Mayfield’s neuropsychological testing from
2009, which showed that Mays was profoundly impaired. Yet Dr. Price disagreed
with Dr. Mayfield’s conclusion regarding the degree of Mays’s impairment, without
explaining why her diagnosis was inappropriate in light of her testing. See 3 EHRR
80-82. He also failed to discuss her findings in his report. See DX39.
Dr. Price acknowledged that the DSM-5 considers the distinction between
mild neurocognitive disorder (his diagnosis) and major neurocognitive disorder (Dr.
Woods’s and Dr. Mayfield’s diagnoses) to be arbitrary; both labels refer to a mental
illness that is degenerative and incurable. 3 EHRR 83-84.
Dr. Price also testified that Mays has a “somatoform disorder,” such that the
many physical symptoms about which he complains cannot be fully explained by an
underlying medical condition and more likely reflect a mental disorder. 2 EHRR
170-72. Dr. Price admitted that a somatoform disorder likely indicates masked
mental health issues that Mays himself may not recognize. 2 EHRR 202. Yet Dr.
Price did not discuss this conclusion, supported by a range of records, in his report.
See DX39.
Dr. Price admitted that the records he reviewed reflected a long history of
paranoia, and he diagnosed Mays with a “paranoid personality disorder” and as
26
being delusional “about the ozone and the air in the prison.” See id.; 2 EHRR 148.
Dr. Price also admitted that Mays’s pronounced paranoia would likely explain his
suspicion about being asked to sign away some perceived right or answering certain
kinds of questions. 2 EHRR 172, 179, 187.
Dr. Price acknowledged that his report emphasizes his belief that there was a
correlation between Mays’s drug use in the 1980s and his current mental illness. Yet
Dr. Price admitted that the cause of the mental illness or impairment is not relevant
to the competency inquiry and that there was no evidence that Mays has used drugs
for several decades and was, instead, evidence that he had quit using drugs entirely
about 25 years before Dr. Price’s assessment. 2 EHRR 151-52; DX39.
Dr. Price further admitted that Article 46.05 does not require a specific kind
of mental illness or make the cause of the mental illness or mental impairment
relevant. 2 EHRR 150-52.
Despite finding “[s]everal mental disorder diagnoses are appropriate for
Randall Mays[,]” Dr. Price concluded: “these mental disorders do not deprive
Randall Mays of a rational understanding of the connection between his crime and
his punishment even though he is against the death penalty, feels his conviction was
totally unfair, and is so depressed and anxious about his impending execution that
he intentionally will not say the words ‘death penalty’ or ‘execution.’ He is
extremely reluctant to discuss his punishment because it seems to upset him so much.
27
He also has difficulty discussing the concept of death.” DX39 at 17. Therefore, Dr.
Price concluded that Mays is “competent for execution.” Id. When asked to explain
how he defined the term “rational understanding,” Dr. Price could not do so. 2 EHRR
221.
Dr. Woods diagnosed Mays with a mental illness and found him
incompetent to be executed.
Dr. Woods concluded that Mays has a mental illness or mental impairment.
Specifically, in his professional opinion, Mays suffers from a major Neurocognitive
Disorder as defined by the DSM-5 and has psychosis. DX42 at 24-25; 3 EHRR 13536. Dr. Woods found Dr. Mayfield’s 2009 neuropsychological testing
comprehensive and “very important.” 3 EHRR 25; 3 EHRR 118. He, the expert who
had assessed Mays closest in time to the evidentiary hearing, also found evidence
that Mays has declined in terms of his delusions and paranoia since Dr. Mayfield’s
testing was performed. Id. at 3 EHRR 196.
Dr. Woods noted that Mays has been free of substance abuse for more than
twenty years, which allows distinguishing his neurobehavioral disorder from a
substance use disorder. DX42 at 25. Dr. Woods found that the history of delusions
and hallucinations, with symptoms spanning decades, is inconsistent with the
conclusion that his psychosis was drug-induced.11 Id. at 26.
11
The cause of a mental illness is not relevant to the competency inquiry. See TEX. CODE
CRIM. PROC. art. 46.05.
28
In addition to a major Neurocognitive Disorder, Dr. Woods found that Mays
manifests symptoms that are consistent with the diagnostic criteria for
schizophrenia, thus that diagnosis cannot be ruled out. Id. at 25; 3 EHRR 133. Dr.
Woods concluded that Mays has psychosis but found insufficient social history
records to determine what type of psychosis he has. 3 EHRR 135-36, 157.
Dr. Woods noted Mays’s long history of paranoia, as reflected in the records,
and described him as a “profoundly demented man with additional delusional
thinking.” DX42 at 26. He saw no evidence to indicate that Mays was malingering.
Id. at 27; see also 3 EHRR 206-09 (explaining at length how “no one has found Mr.
Mays to malinger in any way” during any assessments over the years).
Dr. Woods distinguished paranoia as a symptom of a mental illness from
“Paranoid Personality Disorder,” which Dr. Price had found. 3 EHRR 137-39, 164.
Mays had a documented “history of paranoid ideation” and of acting on paranoid
beliefs, dating back to the 1970s and up through his recent visits with all three courtappointed experts; but, by all accounts, he had “been a pretty pleasant guy …. gotten
along well with people. He’s been married for 20 years. He writes lovely letters to
his wife. In the trial, a doctor came in who he did work for and said that he did good
work for him, although he noticed -- even the doctor noticed” his odd behavior. 3
EHRR 138-39. As Dr. Woods explained, Mays’s ability to make some social
attachments as well as the depth of his delusions are inconsistent with a paranoid
29
personality disorder diagnosis, as opposed to with the diagnosis of a mental illness,
such as schizophrenia. Id. at 139.
Dr. Woods described at length the nature of delusional thinking and how
Mays’s delusions are based on deeply held, fixed beliefs that are pervasive and
rooted in his rural Texas culture and experiences. 3 EHRR 120-28; DX42 at 27.
Dr. Woods concluded that Mays does not have a rational understanding of
why he is to be executed:
Randall Mays is a profoundly demented man with additional delusional
thinking. His delusional thinking, a deeply held belief that Texas
want[s] to kill him in order to protect their oil business from his winddriven sustainable concoction, is consistent with the fixed, false belief
required for delusional thinking. His delusional beliefs are intermixed
with an eroding brain that is no longer working, a brain that believes he
is developing a wind-driven, sustainable energy source that he will be
able to walk off Death Row to launch a successful business.
Mr. Mays does not understand Texas is attempting to execute him for
committing a crime. He recognizes that he was convicted of a crime.
He does not have a rational understanding of the connection between
his crime and punishment. Mr. Mays does not connect the crime to his
pending execution. Rather, he believes the State of Texas is vigorously
attempting to prevent him from being able to perfect his technology and
personally bring it to the energy market place. Mr. Mays’ mental state
is so distorted by a mental illness that his awareness of the crime and
punishment has no relationship to the understanding of those concepts
shared by the community.
APPENDIX E at 26-27. Therefore, Dr. Woods concluded that, in his professional
opinion, “to a reasonable degree of neuropsychiatric certainty, that Randall Mays
meets the Ford standard for incompetence and is therefore incompetent to be
30
executed.” Id. at 27.
ARGUMENT
The Trial Court Abused Its Discretion by Misrepresenting the Factual
Record, Ignoring the Reliable Experts’ Assessments, and Misapplying
the Relevant Legal Standard required by Panetti.
The trial court abused its discretion in assessing Mays’s competency-to-beexecuted, making multiple categorical errors in a two-page Order. That Order does
not merit deference where the record demonstrates that Mays more than carried his
burden to establish his incompetency by a preponderance of the evidence and where
the only bases offered by the trial court for a finding to the contrary are divorced
from “any guiding rules and principles” and reflect “arbitrary or unreasonable”
decision-making. Downer, 701 S.W.2d at 241-42 (Tex. 1985); see also Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op’n on rehearing, explaining
trial court abuses its discretion “when it is clear to the appellate court that what was
perceived by the trial court as common experience is really no more than the
operation of a common prejudice, not borne out in reason”).
The trial court’s Order reflects disregard for the professional
opinions of the qualified experts who used a reliable methodology.
1.
The Order ignores one mental health expert entirely.
The trial court’s Order does not even mention the opinions of Dr. Agharkar or
explain why his assessment as a medical doctor should be disregarded.
31
Dr. Agharkar is a graduate of the Emory University School of Medicine,
where he also had a Forensic Psychiatry Fellowship and an Adult Psychiatric
Residency. Dr. Agharkar additionally served as Chief Resident at Emory University
Hospital. DX34. He has a medical license in the State of Georgia and is a Diplomate
in both Forensic Psychiatry and Adult Psychiatry from the American Board of
Psychiatry and Neurology. Id. Dr. Agharkar has a private practice in psychiatry,
Comprehensive Psychiatric Services of Atlanta. Id. Dr. Agharkar estimated that he
spends 60% of his time on forensic psychiatry, 30% in clinical work treating
patients, and 10% teaching. 2 EHRR 30. He is currently a professor at Emory
University School of Medicine and Morehouse School of Medicine and has held
other teaching positions. DX34. Dr. Agharkar has been retained numerous times by
both the State and the defense to conduct forensic evaluations and has conducted
evaluations for various law enforcement agencies. 2 EHRR 73, 120. He has
conducted competency evaluations previously, including competency-to-beexecuted evaluations. Id. at 118.
Dr. Agharkar found that Mays lacks a rational understanding of why Texas
seeks to execute him. Dr. Agharkar determined that Mays’s lack of rational
understanding is reflected in his delusional, paranoid thought process. DX35 at 6.
Mays, who has a ninth-grade education and a markedly low IQ, told Dr. Agharkar
that, since he had been incarcerated on death row, he had received a patent for a
32
renewable energy source. Id. at 2. Mays believes that the prison had leaked his design
to the public, because after he sent out paperwork to get his patent he started seeing
the technology discussed in the newspapers. Id. at 2-3. Dr. Agharkar elaborated in
his report:
Based on Mays’s perception that the prison is aware of his technology
patent, he believes the state of Texas is trying to execute him to keep
him from making his invention. He said, “a lot of businesses would lose
a ton of money,” and the major electric and oil companies would not
want to see this invention made because it would save the average
consumer a great deal of money and put them out of business. He also
believes Texas wishes to execute him so they would not have to pay for
all his medical costs, which he believes to be significant. Mays also
stated to me that the warden could be pressured by the power companies
to execute him since they would stand to lose “billions of dollars” if his
invention was made. He also told me the warden makes “a lot of money
by executing me” and that he’s “paid a lot of money to do it,” though it
was not clear to me if this money would come from the electric/power
companies.
Id. at 3.
In Dr. Agharkar’s professional opinion, while Mays understands that Texas is
trying to execute him, he believes that this is because of his energy invention and
medical costs. 2 EHRR 66. He believes that big corporations are actively involved
with the State in trying to kill him to silence him regarding his invention. Id. Mays
believes that the corporations are concerned that he will cost them money to the point
that it can put the corporations out of business if his invention is used. Id. at 60, 66.
He thinks that the corporations want to “steal his technology and bury it.” Id. at 60.
33
Dr. Agharkar concluded that Mays’s lack a rational understanding and his delusional
thinking are not malingered. DX35 at 6-7; 2 EHRR 40.
The only mention the trial court’s Order makes of Dr. Agharkar is in
conjunction with an incorrect assertion about letters that Mays had written to family
members that were admitted into evidence. Judge Clayton claimed that he did not
see in these letters “any sign of [Mays’s] obsession with wind energy that Dr. Woods
and Dr. Agharkar referred to.” APPENDIX A at 1. But letters that were admitted into
evidence (which did not purport to be comprehensive) actually contain numerous
references to Mays’s windmill obsession. See, e.g., DX4 at RM16971; DX12 at
RM2063, 2069, 2086, 2097, 2115, 2133; see also DX4 at 2085:
Thus, the trial court’s characterization is flat-out wrong—and yet this
incorrect assessment is the only basis offered for entirely ignoring Dr. Agharkar’s
expert opinions. A conclusion based on an incorrect assessment of the factual record
is an abuse of discretion.
34
2.
The Order dismisses another mental health expert on indefensible
grounds.
The trial court’s Order cavalierly dismisses the opinions of Dr. George
Woods, a highly qualified and experienced neuropsychiatrist retained by the court.
Dr. Woods received his medical degree from the University of Utah. DX41.
He conducted his residency in psychiatry at Pacific Medical Center in San Francisco,
California. Id. He has a medical license in the State of California and is a Diplomate
of the American Board of Psychiatry and Neurology. Id. Dr. Woods is the Immediate
Past President of the International Academy of Law and Mental Health. Id. He has
maintained a private practice in psychiatry for over thirty years. He is a physician
specializing in neuropsychiatry, which involves taking information obtained from
neuropsychologists and neurologists and using it, along with his medical training, to
assess mental disorders. 3 EHRR 99, 108. Dr. Woods estimated that he spends about
65% of his time on forensic psychiatry, 20-25% in clinical practice, and the
remaining 10-15% consulting with companies on projects dealing with neurology.
Id. at 111. Dr. Woods has had numerous teaching positions throughout his career
and is currently a lecturer at the University of California, Berkeley, School of Law.
DX41. He has also taught and conducted evaluations for various law enforcement
agencies. Id.; 3 EHRR 112.
Dr. Woods found that Mays lacks a rational understanding of why Texas seeks
to execute him. In his report, Dr. Woods explained that Mays has “a deeply held
35
belief that Texas wants to kill him in order to protect their oil business from his winddriven sustainable concoction.” DX42 at 26. According to Dr. Woods, Mays’s
“delusional beliefs are intermixed with an eroding brain that is no longer working, a
brain that believes he is developing a wind-driven, sustainable energy source” with
which “he will be able to walk off Death Row to launch a successful business.” Id.
Dr. Woods found that this delusion prevents Mays from having a rational
understanding of the connection between the crime that he was convicted of and his
pending execution. Id.
Dr. Woods explained that Mays’s delusion is not simply his belief in a
renewable energy plan, but that Texas is trying to execute him to prevent him from
marketing and developing his wind energy design. 3 EHRR 197. Mays is under the
impression that the State found out about his design by reading his mail. Id. at 162.
Mays is so paranoid that he told Dr. Woods he would not sell his design in exchange
for getting off of death row. Id. at 158.
Dr. Woods found that Mays has two primary fixed delusions: (1) that the state
government is conspiring with oil companies to deprive him of his windmill device
and wants to kill him to keep it off the market and (2) his long-standing somatic
delusions that people have been trying to poison him or contaminate his food or the
air. 3 EHRR 122-26, 155-57, 159. Dr. Woods testified that these delusions are not
inconsistent with the knowledge that the State says he is in prison for shooting two
36
police officers and was convicted for that crime. 3 EHRR 129; see also Panetti, 551
U.S. at 958 (ruling that mere knowledge of the stated reason for the execution does
not show that the death-sentenced individual has a “rational understanding”
sufficient to be found competent). These beliefs can co-exist, but, in Dr. Woods’s
opinion, Mays’s “overriding belief at this point is that … the State is trying to kill
him because they don’t want his machine to actually come to light.” 3 EHRR 129.
Dr. Woods further explained that having dementia, being delusional, and
lacking a rational understanding of his circumstances do not preclude Mays from
being able to write; the brain is sufficiently complex that a person can have a severe
mental illness, be “unable to weigh and deliberate,” and still be able to do all kinds
of tasks. Id. at 131 (describing the circumstances of a basketball coach with
Alzheimer’s dementia who could, for an extended period, still win basketball
championships).
Dr. Woods opined that, because Mays is profoundly paranoid, that is exactly
why he would not describe in letters sent to his family, which he knew the State was
reading, his deeply held belief that the State is trying to kill him to prevent his wind
technology from destroying the oil industry. 3 EHRR 248-49.
Yet the trial court wholly dismissed Dr. Woods’s clinical opinions without
discussion. Instead, the trial court suggested that Dr. Woods’s objectivity could be
questioned (and all of his expertise and specific conclusions disregarded) because
37
the judge observed him “passing written notes to counsel for the Defendant during
her examination of Dr. Randall Price.” APPENDIX A at 2. This observation somehow
led the court to conclude that Dr. Woods “had become an advocate” rather than
someone offering “an objective assessment.” Id. at 2.
The trial court’s conclusion is unsound for at least two reasons. First, the
Court had no way of knowing what the content of Dr. Woods’s note was since no
such note was admitted into evidence or described on the record. Second, if passing
a note were a basis to disavow an expert’s opinion, than it seems decidedly odd that
the trial court relied solely on Dr. Price who was observed meeting privately with
counsel for the State repeatedly before and during the proceeding—a fact noted on
the record. 2 EHRR 138-39. The decision to disregard Dr. Price’s extended
conferences with the State in private (as opposed to a note passed openly in court) is
even more troubling considering that it was developed on the record that Dr. Price
was laboring under an conflict of interest during this engagement that was not
disclosed to the court when he was appointed. Id. at 135-37.
3.
The Order ignores not only Dr. Price’s conflict of interest but also
his deficient technique.
The trial court elevated Dr. Price’s opinions over the other two courtappointed experts while disregarding Dr. Price’s conflict of interest and then
ignoring his patently flawed methodology.
38
Dr. Price’s conflict of interest came to light during the evidentiary hearing.
Dr. Price, a neuropsychologist, not a medical doctor, owns a private practice called
Price, Proctor, and Associates. The other named partner in the group is Dr. Timothy
Proctor. In this proceeding, the State had submitted both Dr. Proctor’s and Dr.
Price’s names as experts whom the court could appoint to conduct an objective
evaluation of Mays’s competency to be executed. 2 EHRR 133-34; DX47.12 At the
time, the State did not disclose that Dr. Proctor had been previously retained by the
State in this same cause to assist the State at the time of Mays’s trial. 2 EHRR 135.
On the stand, Dr. Price admitted being aware that his practice partner had assisted
the State in securing a death sentence against Mays. Yet Dr. Price agreed to accept
the court appointment to assess Mays’s competency-to-be-executed without
revealing this conflict to the court. Id. at 136. This fact alone should have caused the
court to discount Dr. Price’s objectivity in this matter.13
Moreover, Dr. Price lacked the requisite clinical experience to conduct the
assessment. He spends 80% of his time doing forensic assessments and 20% doing
occupational assessments. Id. at 141. He does not have a clinical practice treating
patients. Id. at 142. As noted in the 2003 Guidelines that the experts were supposed
12
In addition to Price and Proctor, the State’s list of proposed experts included Dr. Edward
Gripon, M.D. DX47. Dr. Gripon has been sanctioned by the Texas Medical Board. 2 EHRR 134.
13
Notably, when the State began its examination of the friendly witness, Dr. Price, counsel
slipped and referred to him as “Dr. Proctor.” See 3 EHRR 4.
39
to use to assist them in assessing Mays, experts selected to conduct a competencyto-be-executed evaluation should have demonstrated skill in clinical practice. 3
EHRR 182; see also APPENDIX C. Dr. Price’s lack of clinical experience may explain
his demonstrably flawed technique, which prevented him from building the rapport
necessary to assess the deeply held delusions of a paranoid man. 14
Dr. Price acknowledged the importance of building rapport to conducting a
forensic evaluation and to making an accurate mental health assessment. 2 EHRR
157-63. He also agreed that rapport-building with someone with a history of
paranoia, like Mays, might be particularly challenging. 2 EHRR 187. Yet Dr. Price
elected to begin his interview with Mays by stating that he thought the State likely
proposed him as an expert and then asking Mays to sign an “informed consent” form.
2 EHRR 162, 169. Dr. Price then spent a significant portion of his brief interview
asking Mays questions regarding the offense itself, even though Dr. Price recognized
that this was not a good way to establish rapport with Mays. Id. at 180; see also 3
EHRR 121-27 (describing the nature of delusional thinking and the challenges of
confronting delusional beliefs directly).
Dr. Price found that many subjects made Mays uncomfortable, including his
experiences in the Terrell State Hospital, his family history, and the facts
14
Dr. Price admitted that the available records reflect that Mays had a long history of
paranoia, especially with regard to his treatment, and that the records show a pattern of resisting
treatment for both mental and physical illness. 2 EHRR 205-07.
40
surrounding the underlying offense. 2 EHRR 175-76, 179-80. Instead of inducing
Mays to open up, Dr. Price spent most of the interview trying to ask 104 close-ended
questions he had brought with him into the interview. DX39 & DX40. Dr. Price
stated in his notes that Mays started crying during the interview (a fact that Dr. Price
did not include in his final report). DX40 at 6. But instead of exploring the reason
for this emotional outburst, Dr. Price changed the subject. 2 EHRR 174.
Dr. Price admitted that he could not speak about Mays’s beliefs as to why the
State plans to execute him because Dr. Price was unable to engage Mays in a
conversation about that topic. 3 EHRR 71. Therefore, Dr. Price had no basis to opine
about the ultimate issue of whether Mays has a rational understanding of why he is
to be executed—yet Dr. Price presumed to do so anyway.
The trial court should have recognized that Dr. Price permitted his frustration
about his own failure to build rapport with Mays to cloud his professional judgment.
See 2 EHRR 210 (Dr. Price admitting that he found Mays’s resistance to answering
certain kinds of questions significant to finding that Mays is competent to be
executed). Dr. Price testified that Mays had refused to take the neuropsychological
tests that Dr. Price had wanted to administer. 2 EHRR 168-70. Dr. Price tried to
administer these tests after he had triggered Mays’s paranoia by asking him
numerous questions, including about what his lawyers looked like and other matters
irrelevant to the competency inquiry. See, e.g., Dr. Price’s notes (DX40) recording
41
Mays’s responses to Questions 72-76 found in “Appendix C’ in Dr. Price’s Report
(DX39):
Mays reacted to the barrage of questions by saying “[I] don’t think I should
be giving you this info,” then he shut down. Id. Subsequently, Dr. Price failed to
overcome Mays’s paranoia so as to be able to administer additional testing he had
planned to give. This circumstance is more indicative of Dr. Price’s deficient
interviewing skills than of whether Mays has a rational understanding of the
connection between the crime and his punishment.
Dr. Price made no inquiry about going back for a follow-up interview to try
again. 2 EHRR 169-70. Instead, he went ahead with writing a report based on an
42
interview he felt was incomplete. 2 EHRR 44-47. 15 If the testing that Dr. Price
wanted to do was essential to his assessment, he should not have reached a
conclusion until the testing was accomplished. Alternatively, if the testing was not
really necessary, 16 than it is unclear why Mays’s paranoia about being subjected to
further testing should support Dr. Price’s hastily reached conclusion that Mays has
a rational understanding of the connection between his crime and punishment. See
DX39; DX40. Although Dr. Price concluded that Mays has a “rational
understanding,” Dr. Price could not provide a definition of this key term—despite
having been tasked by the court to reach this issue. 2 EHRR 221. Dr. Price’s inability
to define “rational understanding” and his contorted notion of what constitutes
“rational” expectations among those awaiting execution cast serious doubt on the
reliability of his conclusions. For instance, Dr. Price opined that Mays’s belief that
he could run a windmill business from death row was reasonable, just a “day dream,”
akin to what other inmates do to pass the time. 2 EHRR 217-18. That facially absurd
suggestion should have engendered skepticism in the trial court. Dr. Price’s
15
Dr. Agharkar, who also had some difficulty with Mays’s resistance to questions, made
arrangements to return to the Polunsky Unit for a second interview.
16
Dr. Price did not identify any problems with the extensive neuropsychological testing
that had been previously administered to Mays by Dr. Mayfield or with the screening tests
administered to Mays by Dr. Woods. Thus, Dr. Price could not explain why, in light of that testing,
Dr. Mayfield and Dr. Woods were incorrect in concluding that Mays has a major neurocognitive
disorder whereas Dr. Price considers the mental illness to be a mild neurocognitive disorder. 3
EHRR 80-82.
43
unsupported, unexplained conclusion regarding Mays’s rational understanding is
especially troubling as Dr. Price, like the other mental health experts, found no
evidence that Mays is malingering. 3 EHRR 43.
Dr. Price ultimately admitted that Mays’s refusal to cooperate in the clinical
interview was irrational under the circumstances and consistent with a long history
of Mays refusing to accept or authorize treatment, predating his time in prison. Yet
Dr. Price used this symptom of mental illness to support his conclusion that Mays
nevertheless had a rational understanding of the connection between his crime and
his punishment, a decidedly circular assessment that strains credulity.
The trial court’s Order contains no basis for the decision to ignore the opinions
of the two credible court-appointed experts and to rely instead on an expert who,
after a truncated interview, hastily reached a conclusion about Mays’s competence
that the expert was unable to defend. See 2 EHRR 148-221.
The trial court’s Order disregards the fact that all of the courtappointed experts found Mays to be mentally ill.
The trial court’s Order also asserts (incorrectly) that Mays “has not been
diagnosed, treated, or received prescribed medications for any mental illness or
obsession.” APPENDIX A at 2. This false assertion of fact is troubling for multiple
reasons.
First, all three court-appointed experts agreed that Mays has a mental illness
or mental impairment. They even all agreed that he has a neurocognitive disorder;
44
they simply disagreed about the precise diagnosis. See APPENDIX D; APPENDIX E;
APPENDIX F. Therefore, the trial court’s suggestion to the contrary reflects blatant
disregard for the relevant evidence, constituting an abuse of discretion.
Second, if what the trial court means is that Mays has not received mental
health treatment while on death row, even if true, that circumstance would not be
dispositive of anything—other than the poor mental health treatment afforded those
incarcerated on Texas’s death row. Back in 2014, a TDCJ record indicates that a
UTMB employee concluded that Mays ought to be scheduled for a mental health
evaluation after he had been continuously complaining about “gases in the air
affecting his breathing.” DX7 at 21. Yet there is no evidence that the proposed
evaluation ever took place.
Notably, only when Mays’s counsel obtained an order in this proceeding
permitting the deposition of Dr. Joseph Penn, the director of mental health services
for UTMB Correctional Managed Care, did the latter arrange for Mays to have a
meeting with a psychiatrist via video-conferencing sometime in late July 2017. 5
EHRR 15. It was very unusual for Dr. Penn to make a referral of this nature, directly
to his mental health staff, involving a specific inmate, id.; and the timing of the
referral is highly suspect. Dr. Penn’s directive occurred in conjunction with his
testimony purporting to describe the outstanding mental health services provided to
45
individuals incarcerated in TDCJ and, particularly, the Polunsky Unit, and, more
specifically, on death row.
Nothing about the substance of the drive-by psychiatric evaluation was
offered into evidence (or produced to Mays’s counsel). It is highly likely that the
State reviewed a recording of the eleventh-hour psychiatric video-conference as well
as the recordings of visitations that TDCJ routinely makes, looking for evidence that
Mays is secretly lucid.17 It is equally likely that, had the State found anything
“incriminating,” it would have introduced such recordings into the record during the
evidentiary hearing—as the State has done in Battaglia and Panetti and other
competency-to-be-executed cases. Therefore, the reasonable conclusion is that
Mays’s serious mental illness is apparent during any extended conversation with
him, which the State learned upon reviewing those recordings.
Instead of producing recordings of Mays, the State offered the entire transcript
of the deposition of Dr. Penn, a UTMB administrator, into evidence during the
evidentiary hearing. SX1A. The State also played the entire recording during the
hearing. 4 EHRR 64. Many of the assertions that Dr. Penn made were contradicted
by his own employees or correctional officers assigned to the death row unit. See,
e.g., 5 EHRR 9, 25, 31-32, 66. Others were facially absurd. For instance, Dr. Penn
17
The record reflects that the State searched Mays’s cell after his 46.05 motion was filed,
presumably seeking evidence to rebut the claim of incompetency. See SX2-8.
46
testified that death row inmates have access to “group therapy;” that attorneys and
advocacy groups have access to a mysterious phone number to request mental health
services for their clients; and that death row inmates who become psychotic are
transferred to the Jester IV Unit for inpatient care “that day or the next day.” SX1A
at 30, 53, 67. State’s witness Nina Foster, the current head of mental health services
at the Polunsky Unit, admitted there was no group therapy, acknowledged ignorance
of a phone number attorneys and family members can use to inquire about inmates’
mental health treatment, and explained that psychotic individuals are sometimes
moved from Polunsky to Jester IV, but only after seriously injuring themselves (such
as gouging their eyes out) or attempting suicide. 5 EHRR 42-43.
Ms. Foster also testified regarding the limited circumstances whereby
individual therapy is provided to death row inmates. It occurs “cell side” for a few
minutes through the cracks of a steel door while the therapist is dressed in a Kevlar
vest. Id. at 68. This questionable practice demonstrates why inmates with serious
mental illnesses, like Mays, may not seek out mental health treatment and why
seriously impaired individuals continue to be housed at the Polunsky Unit instead of
being removed to the Jester IV Unit, as Dr. Penn suggested.
Despite the consensus among the court-appointed mental health experts that
Mays suffers from long-standing mental illness, the trial court’s Order seems to
imply that Mays is not actually mentally ill because he was observed writing notes
47
during the court proceeding. That is, the trial court seems to have based its
competency decision on the observation that Mays “and his counsel had a steady
stream of written notes passed between them” and thus concluded he “appeared to
be fully participating in the hearing as much as he physically could.” APPENDIX A at
2.
First of all, as Dr. Woods explained at length, people with mental illness and
even dementia can still read and write and do other tasks. 3 EHRR 129-31. Yet the
trial court’s Order implies that the mere act of reading and writing at all somehow
establishes an inmate’s competency-to-be-executed. Competency, however, is a
legal term of art that must be assessed through the lens of mental-health expertise,
which is why 46.05 requires the appointment of mental health experts. See TEX.
CODE CRIM. PROC. art. 46.05(f). As noted in Panetti, a person can have
schizophrenia and still have normal cognitive functioning; indeed, a person can have
a serious mental illness and still be “clear and lucid” at times. Panetti, 551 U.S. at
955. The trial court here seems to have confused the concept of “competency” with
the concept of “basic cognition,” implying that being a sentient being, instead of a
vegetable, forecloses a finding of incompetency-to-be-executed.
Second, the trial court was not privy to the content of any notes exchanged
between Mays and his counsel. For all the court knows, those notes could have
contained requests for bathroom breaks, drawings of his windmill design,
48
expressions of concern about being poisoned, and complaints about how his lame
arm was being wrenched by the shackles he was wearing during court. In short, there
is no basis for the trial court’s assumption that these notes reflected any
comprehension of what was taking place on the stand. The court’s decision to take
judicial notice of attorney-client communications that the court did not read
constitutes a further abuse of discretion.
The use of “judicial notice” is only justified “where a fact is easily
determinable with certainty from sources considered reliable,” such that “it would
not make good sense to require formal proof.” Holloway v State, 666 S.W.2d 104,
108 (Tex. Crim. App. 1984); see TEX. R. EVID. 201. For these reasons, courts
generally take judicial notice of facts outside the record only to determine
jurisdiction or to resolve matters ancillary to decisions that are mandated by law. In
re R.A., 417 S.W.3d 569, 576 (Tex. App.—El Paso 2013, no pet.). By contrast, courts
properly eschew taking judicial notice of matters that go to the merits of a dispute.
SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas
1991, no writ); see also Gaston v. State, 63 S.W.3d 893, 900 (Tex. App.—Dallas
2001, no pet.). “Reliance on judicial notice rather than the normal requirements of
proof must be justified by a high degree of indisputability.” Garza v State, 996
S.W.2d 276, 280 (Tex. App.—Dallas 1999, pet. refused). There could be no “high
49
degree of indisputability” about the contents of notes that the trial court did not even
see.
The trial court’s Order misrepresents the factual record regarding
how the mental health experts reached the ultimate issue.
1.
The Order inaccurately characterizes whether Mays brought up a
key topic with all three experts.
Two of the three court-appointed experts found Mays incompetent-to-beexecuted because he lacks a rational understanding as to why the State of Texas
plans to execute him. Dr. Agharkar and Dr. Woods explained at length the
information gleaned from interviewing Mays that they believe confirmed that he has
long-standing, fixed delusions about being “poisoned” and targeted by the
authorities, more recently because of his reputedly patent-worthy plans for clean
energy windmills that will bring down Big Oil. See DX36; DX37; DX43; APPENDIX
D; APPENDIX E. The trial court offered no coherent explanation for disregarding
Mays’s lack of rational understanding, evidenced by the contents of both Dr.
Agharkar’s and Dr. Woods’s clinical interviews, written reports, and live testimony.
Instead, the trial court incorrectly suggested that Dr. Woods’s and Dr. Agharkar’s
medical opinions could be ignored because Mays “did not even mention his so-called
‘obsession’ over his clean energy design” to Dr. Price “much less indicate it was the
reason he was to be executed.” APPENDIX A at 2.
50
In fact, the record shows that Mays did bring up his plans for renewable wind
energy with Dr. Price; yet when this happened, Dr. Price disdainfully suggested that
he “acted like [he] was interested” and then tried to change the subject. 3 EHRR 46.
In Dr. Price’s opinion, Mays’s attempt to discuss his renewable energy plans were
just an example of a person trying to “use up the time on things that are not
important.” Id. By contrast, Dr. Woods and Dr. Agharkar (correctly) recognized that
Mays’s discussion of his renewable energy plans was quite important, as it was
symptomatic of Mays’ underlying mental illness and consonant with underlying
records reflecting that illness. Therefore, they focused their assessment on exploring
his delusional thoughts about his renewable energy wind device and then explaining
that thought process in clinical terms.
Dr. Price’s failure to dig into Mays’s delusional thought processes, which are
reflected in records Price was charged with reviewing, is a sound reason to disavow
his conclusion regarding the ultimate issue. Significantly, the trial court’s assertion
that Mays “did not even mention his so-called ‘obsession’ over his clean energy
design” to Dr. Price contradicts Dr. Price’s own testimony and interview notes. Dr.
Price’s own notes capture the following comments Mays made to Dr. Price:
• “Renewable energy very imp for people to think about”
• “If not in here … I would be trying to build houses w/renewable energy
– I think underground houses are an option – also rock houses are a
good idea.”
51
• “I think they should take a good look at ozone air and what it is doing
to us”
DX40. Indeed, the only page of Dr. Price’s notes that seems to reflect an open-ended
conversation with Mays is all about Mays’s renewable energy “obsession.” Dr.
Price’s notes also show that, soon after this discussion, Dr. Price shifted gears. See
also 3 EHRR 46 (Dr. Price admitting that he sought to change the subject because
he saw Mays’s discussion about his renewable energy plans as using “up the time
on things that are not important.”). Dr. Price spent most of his time with Mays trying
to ask the 104 close-ended questions he had written out based on the checklist in the
2003 Guidelines, including section four that Judge Tarrance had expressly excluded
as irrelevant. See id.; APPENDIX B; APPENDIX C;
The trial court’s mischaracterization of the record on a key point—whether
Mays had brought up his renewable energy obsession with all three experts—reflects
another abuse of discretion.
2.
The Order incorrectly suggests that only Dr. Price “included” the
court’s “guidelines” in assessing Mays.
Dr. Price is the only expert who concluded that Mays is competent-to-beexecuted. The only basis the trial court’s Order provides for its unreasonable reliance
on Dr. Price’s conclusion about the ultimate issue is the demonstrably false
suggestion that Dr. Price was “the only expert who included the guidelines specified
by the Court in the Order of Appointment.” APPENDIX A at 2. It is unclear what the
52
trial court means by “included.” Presumably, the trial court means “used.” The
“guidelines” to which the Order refers are the 2003 Guidelines that Mays’s counsel
had proposed giving to the court-appointed experts and which Judge Tarrance had
agreed would be attached to his order asking the experts to assess Mays’s
competency. See APPENDIX B; APPENDIX C. The court’s Agreed Order directed the
appointed experts to review the 2003 Guidelines and to use sections one, two, and
three, but not four, of the checklist found in the appendix to “assist” in conducting
the evaluations as they saw fit. See APPENDIX B at 19-23. 18
Significantly, these 2003 Guidelines were created before the Supreme Court
decided Panetti in 2007. Further, the 2003 Guidelines themselves include multiple
precautions with respect to the checklist of questions found in an appendix to the
guidelines. In a section entitled “Using the Checklist,” the authors stress that “simply
going through this checklist is not enough to assess every individual adequately with
respect to competence for execution. We think of this checklist as an organizing
18
Mays’s counsel had recommended providing the court-appointed mental health experts
with the 2003 Guidelines and Judge Tarrance agreed. But the terms of the appointment did not
direct any of the experts to follow all of the recommendations contained therein. For instance, no
experts were able to conduct collateral interviews with Mays’s friends and family. APPENDIX C
[Zapf, 21 BEHAV. SCI. LAW] at 110. Nor were any of the experts’ interviews with Mays video- or
audio-recorded, as the 2003 Guidelines recommend. Id. at 111 n.4. A debate developed during the
evidentiary hearing about whether Dr. Price’s decision to read to Mays 104 close-ended questions
based on the entire checklist constituted poor clinical technique or an appropriate “use” of the 2003
Guidelines. The State’s defense of Dr. Price’s robotic use of a checklist, including questions based
on section four that he had been expressly directed not to use, is ironic since the State initially
resisted the idea of giving the court-appointed experts these guidelines at all. See 6 EHRR 9-10;
DX40; APPENDIX B at 23-24.
53
structure to be used to guide the evaluator through relevant topic areas in the
assessment of competence for execution.” APPENDIX C [Zapf, 21 BEHAV. SCI. LAW]
at 106, 115. Also, the authors note: “the checklist represents a first step that will need
to go through a process that includes field-testing, standardization, and the
development of norms”—which did not ultimately happen. Id. at 116; 3 EHRR 18889, 191-93. Moreover, the principal author of the 2003 Guidelines later published
an article expressly acknowledging the limitations of the 2003 Guidelines in light of
Panetti. See Patricia Zapf, Elucidating the Contours of Competency for Execution:
The Implications of Ford and Panetti for Assessment, 37 THE JOURNAL OF
PSYCHIATRY & LAW 269 (Summer-Fall 2009).
In any event, all three experts used the 2003 Guidelines to assist them in
assessing Mays. But only Dr. Price asked Mays questions from section four of the
checklist that Judge Tarrance had expressly excluded as irrelevant to the assessment.
APPENDIX B at 19. Additionally, only Dr. Price converted the opened-ended
checklist of topics in the 2003 Guidelines into close-ended questions that he pursued
in a rote fashion at the expense of building rapport and probing the nature of Mays’s
delusional thinking, although decades’ worth of documents that Dr. Price was
charged with reviewing reflected long-standing delusional thinking and paranoia.
Compare APPENDIX F at Appendix C (pp. 39-43) and DX40 with APPENDIX C at
“Appendix” (pp. 117-120).
54
3.
Dr. Agharkar’s methodology included the 2003 Guidelines.
As directed, Dr. Agharkar used the 2003 Guidelines to assist in conducting
his evaluation of Mays. 2 EHRR 33-34, 122. He testified that he “read the whole
checklist, but I didn’t carry it with me to do [the] examination. That’s not good
technique.” Id. at 114. When conducting an evaluation, either clinical or forensic,
Dr. Agharkar explained that it is generally not a good idea to simply go down a list
of questions, particularly if they are close-ended questions. Id. at 33. In contrast,
open-ended questions allow a better understanding of the individual being evaluated.
Id. at 34.
Dr. Agharkar explained that building rapport is “extremely” important when
conducting a forensic evaluation. Id. at 46. Rapport is the process of “establishing a
relationship with the person so that they feel that they can talk with you and they can
open up and share with you . . . [a]nd if they don’t trust you, they’re not likely to be
open to you.” Id. In Dr. Agharkar’s opinion, “if you hit somebody with a barrage of
questions or you just go down a list, there’s really not a chance to build a rapport in
my opinion and my experience.” Id. Because of this, he avoids using checklists in a
mechanical fashion, as it hampers his ability to build rapport. Id. Dr. Agharkar also
testified that, when evaluating individuals like Mays with a history of paranoia and
delusions, building rapport is “vital” to the reliability of the evaluation. Id. at 47.
55
When conducting his evaluation, Dr. Agharkar utilized a semi-structured
interview format based on the 2003 Guidelines. Id. at 109. This allowed him to
address necessary areas, while permitting him “to be able to go freely between
topics” as needed during the interview. Id. He asked Mays why he was on death row,
2 EHRR 111, then focused his evaluation on Mays’s mental illness and delusions.
Id. at 117-18; DX35-DX37. Dr. Agharkar also based his opinion regarding Mays’s
incompetency-to-be-executed on his review of the relevant records and prior
neuropsychological testing. 2 EHRR 120.
4.
Dr. Woods methodology included the 2003 Guidelines.
Dr. Woods was familiar with the 2003 Guidelines well before being appointed
to evaluate Mays and utilized them when conducting his evaluation. 3 EHRR 102.
Dr. Woods discussed the useful nature of the article itself, but also identified some
problems with the checklist and noted that section 4, regarding the ability to assist
an attorney, is not relevant to the competency-to-be-executed inquiry, as Judge
Tarrance had also recognized. Id. at 188-89, 191-93; APPENDIX B at 19.
Dr. Woods testified that when preparing to conduct a competency-to-beexecuted evaluation, it is important to ensure that there is a clear referral question,
that the evaluator is familiar with the statutory requirements, and that the evaluator
keeps in mind that some factors that may be important to a competency-to-standtrial evaluation—such as a detailed analysis of the crime itself—are not relevant to
56
a competency-to-be-executed evaluation. Id. at 115. Instead, Dr. Woods explained
that the real issues are whether the person understands they were convicted of a
crime, that there is an imminent possibility of execution, and whether they have a
factual and rational understanding of why they are to be executed. Id. at 116. The
methodology used by the evaluator should be geared toward getting answers to these
questions. Id.
Dr. Woods testified in detail regarding the process he uses to determine
whether an individual is competent to be executed. First, he attempts to determine
whether the person has a mental illness; if they do not, they must be found competent
to be executed. 3 EHRR 171. Second, if the mental illness exists, he tries to “cross
the bridge from that mental disease or defect to the question that is asked”:
[Y]ou want to see if there is a relationship between the mental disease
and defect, the symptoms that are there, and the legal question that
you’re asking. For example, in this case, if you have someone that
appears to be delusional, first of all, you don’t assume that they’re
delusional. You try to get in there and see. . . . Once you determine that
perhaps this person does have a delusion, then it changes the way that
you cross that bridge because you can’t just confront them and say, hey,
what do you think, or, I don’t -- I don’t believe that, or, I don’t buy that.
And you really talk to them about their delusion in ways that gets you
to the information that you’re looking for.
Id. at 171-172. He also explained that he would not necessarily go through the items
in the checklist attached to the 2003 Guidelines in a set order, but instead allows for
flexibility when conducting the interview. Id. at 171; see also APPENDIX C [Zapf, 21
57
BEHAV. SCI. LAW] at 106, 115 (“We think of this checklist as an organizing structure
. . . ”).
During his interview, Dr. Woods asked Mays why he was on death row. After
building rapport with him, he then spent a significant amount of time discussing with
Mays the substance of what Dr. Woods found to be fixed, pervasive delusions
reflecting Mays’s mental illness and relevant to assessing his competency-to-beexecuted, as reflected in his report and interview notes. Id. at 172-73; DX42; DX43.
Dr. Woods also gave Mays standardized neuropsychological tests, including
the Montreal Cognitive Assessment (MoCA) and Cognistat Cognitive Assessment.
He specifically mentioned the Picture Test, Serial Sevens Test, and Trail-Making
Test results as relevant to his conclusions. While the State’s counsel questioned Dr.
Woods’s method for scoring these tests, these are standardized instruments whose
scoring is governed, not by the test administrator, but by the published test manuals.
3 EHRR 203, 237-38.19
Dr. Woods emphasized that one cannot “clinically leap to certain conclusions”
based on what someone in a clinical interview does not say. 3 EHRR 116-17. Dr.
19
Dr. Woods has served as a consultant to neuropsychologists regarding
neuropsychological tests, such as the Wisconsin Card Sorting Test, Halstead Reitan Battery, the
Cognistat, the Montreal Cognitive Assessment Instrument (MoCA), and Delis Kaplan Executive
Function System (DKEFS). DX42 at 4. Moreover, Dr. Price, a neuropsychologist who reviewed
Dr. Woods’s report, did not testify as to any defects in Dr. Woods’s scoring of the
neuropsychological tests he gave to Mays.
.
58
Woods found this precaution particularly important with someone like Mays who is
known to have “significant cognitive impairment” and “significant mental illness”
including a history of paranoid thinking. Id. at 117. Yet that is precisely what Dr.
Price did: he reached a conclusion about Mays’s understanding of his circumstances
based on what Mays did not discuss with Dr. Price, although it was Dr. Price who
failed to earn the trust of Mays, whom all experts recognized was a deeply paranoid
individual. Dr. Price’s approach is analogous to a teacher reducing a student’s grade
for failing to solve a problem that the teacher failed to include in the exam.
Dr. Woods explained at length the nature of delusions, the role they play in
making mentally ill persons feel more in control, and the importance of building
rapport by avoiding confronting the person’s delusions directly. Id. at 127. Dr.
Woods certainly used, but did not limit himself to, the checklist of questions in the
2003 Guidelines.
5.
Only Dr. Price misused the 2003 Guidelines.
Dr. Price testified that he read the 2003 Guidelines prior to evaluating Mays
and used the attached checklist to prepare 104 questions to ask during the interview.
2 EHRR 188, 190; 3 EHRR 5-6, 74. He brought this checklist with him to the
evaluation. 2 EHRR 187. While he testified that he did not go through his questions
in a mechanical fashion, his notes reflect that he spent only about two hours with
Mays; thus much of the interview was devoted to reviewing an “informed consent”
59
disclosure form and then attempting to ask the 104 close-ended questions he had
prepared based on the entire checklist, including section four that the court had
excluded because those questions are not relevant to the competency-to-be-executed
inquiry. See DX40; 2 EHRR 162, 169; DX45; 2 EHRR 132; APPENDIX B at 19.
The trial court’s conclusion about Mays’s competency seems to be based on
the notion that Dr. Price was the only court-appointed expert to “include” the 2003
Guidelines in his evaluation, yet that representation is demonstrably false. That
conclusion also reflects a lack of understanding about the proper relationship
between the 2003 Guidelines and the Supreme Court’s 2007 decision in Panetti.
Concerns about the limitations of the 2003 Guidelines, particularly the checklist, in
the wake of Panetti have been noted by the principal author of the 2003 Guidelines
herself. See Zapf, Elucidating the Contours of Competency for Execution: The
Implications of Ford and Panetti for Assessment, 37 THE JOURNAL OF PSYCHIATRY
& LAW 269 (Summer-Fall 2009). Moreover, this important context and concerns
about the checklist were brought to the court’s attention during the evidentiary
hearing. 3 EHRR 131-33, 188-89, 191-93. This context is not, however, discussed
in the trial court’s Order. Only Dr. Price disregarded the appointment order
(APPENDIX C) regarding the scope of the checklist; and only Dr. Price seemed illinformed about the subsequent history of the 2003 Guidelines and the need for
caution with respect to the checklist. And because it is incorrect that Dr. Price was
60
the only expert who “included the guidelines” in his assessment (APPENDIX A at 2),
the trial court’s decision to credit Dr. Price’s conclusion over those of the other
experts on this basis was an abuse of discretion. See, by contrast, the discussion of
the district court’s analysis in Billiot v. Epps, 671 F. Supp.2d 840 (S.D. Miss 2009),
cited favorably by this Court in Battaglia v. State, 537 S.W.3d 57, 68 (Tex. Crim.
App. 2017). As this Court explained, the district court in Billiot “was compelled to
credit one set of opinions over the other” because the experts’ “ultimate opinions on
Billiot’s competency to be executed differed[.]” Id. To decide which of the mental
health experts’ opinions to credit, the Billiot court undertook an independent review
of the medical recordings and otherwise explained in cogent terms the basis for the
court’s conclusion that Billiot was incompetent. No independent review occurred
here.
The trial court’s Order reveals a misapprehension of the governing
standard.
The few additional clues in the trial court’s stream-of-consciousness Order
reveal a fundamental disregard for the governing legal standard and thus a failure to
apply it in this 46.05 proceeding.
1.
The trial court improperly relied on evidence that Mays has a bare
factual awareness that Texas plans to execute him.
61
The trial court seems to have labored under the misconception that if Mays
knew, at one time, that his execution was imminent, that is somehow dispositive of
his competency. See APPENDIX A. It is not.
In Panetti, the United States Supreme Court squarely rejected the bare factual
awareness standard, noting that it “treats a prisoner’s delusional belief system as
irrelevant if the prisoner knows that the State has identified his crimes as the reason
for his execution.” Panetti, 551 U.S. at 958. Thus, the Supreme Court concluded that
the pre-Panetti Fifth Circuit standard was “too restrictive to afford a prisoner the
protections granted by the Eighth Amendment.” Id. at 956–57.
Instead, the Eighth Amendment requires that a competency inquiry must
probe whether the person has a rational understanding of his punishment and the
reason for it. If the person’s lack of rationality prevents or distorts that understanding
to the point at which the execution no longer serves the purpose intended, the Eighth
Amendment is violated. As the Supreme Court emphasized, “[a] prisoner’s
awareness of the State’s rationale for an execution is not the same as a rational
understanding of it.” Id. at 959. Panetti repeatedly emphasizes that the “rational
understanding” test is the appropriate one, as it is consistent with the reasons
supporting the ban on executing the insane announced in Ford. Id. at 958–62.
Inquiring solely into whether a prisoner “understands”—in the narrow
sense—that “he or she is to be executed and that the execution is imminent” and “the
62
reason he or she is being executed” is not enough. Such a limited inquiry fails to
reach the heart of whether the prisoner has a rational understanding of his crime and
punishment sufficient to justify his execution under the Eighth Amendment.
The trial court’s conclusion is supported by an elliptical description of
evidence suggesting that Mays was aware that his execution—or at least his death—
was at one time imminent. The Order states: “less than one month prior to the
original execution date[,]” Mays wrote to his sister about the costs that would be
associated with building “the wood box” and “informed her of the burial plots
purchased for the Mays Family in Dunbar cemetery”—suggesting, without
explaining, that the trial court believes this letter somehow proves Mays’s
competency. APPENDIX A at 1. But no one contested that Mays knew at one time that
Texas was planning to execute him. The argument was, and remains, that there is
uncontroverted evidence, from the only experts who were able to engage Mays in a
discussion of his delusional beliefs, establishing that he lacks a rational
understanding of why that execution is to take place.
As this Court recently explained, “the standard for incompetence in this
context which focuses exclusively upon the defendant’s awareness of his situation
but which ignores … thought processes which interfere with his ability to rationally
comprehend the causal link between his capital offense and his imminent execution
63
is unconstitutionality narrow.” Battaglia, 537 S.W.3d at 81 (quoting Wood v.
Quarterman, 572 F. Supp.2d 814, 818 (W.D. Tex. 2008) (emphasis added)).
That Mays, at one time, had a bare awareness that he was to be executed does
not establish that he has a rational understanding of how his punishment arises from
his crime. Under current Supreme Court law, the failure to consider information
regarding Mays’s mental illness, delusions, and irrational thought processes is
plainly unconstitutional. That is why this Court has construed the statute’s use of
the word “understanding” to mean “rational understanding,” as Panetti requires. See
Mays, 476 S.W.3d at 457 n.4 (citing Panetti to support the proposition that “[w]ith
respect to the second prong [of 46.05(h)], a defendant does not understand the reason
for his execution unless he has a ‘rational understanding’ of that reason”); see also
Green, 374 S.W.3d at 443-44. Absent this construction, the competency inquiry falls
short of constitutional mandates—as it fell short here.
2.
The trial court improperly relied on ancillary, irrelevant evidence.
Odder still, instead of relying on the opinions of highly qualified mental health
professionals whom the court itself had appointed, the trial court devoted the longest
paragraph in its slapdash opinion to discussing the testimony of a TDCJ guard,
Cynthia Cooper. When subpoenaed by the State to testify, Ms. Cooper had been
working as a correctional officer for only 16 months and had no mental health
background. 5 EHRR 46, 65. She testified that Mays was “always polite” and had
64
not, in her “few conversations with him,” ever heard him mention his green energy
theories or his fears of poisoned food or ozone. From this the trial court inferred that
these obsessions must not exist. APPENDIX A at 2; 4 EHRR 53-54. Such a conclusion
is baseless.
For one thing, TDCJ’s own records capture Mays’s long-standing fears about
being poisoned by the food and by the ozone. See, e.g., DX7 at 21. Moreover, Ms.
Cooper admitted under oath that she does not spend a significant period during the
day observing Mays and, in fact, had no experience of Mays during most of the time
he has been incarcerated at the Polunsky Unit. 4 EHRR 64, 66. The trial court’s
attempt to discount the uncontroverted evidence of Mays’s long-standing delusions
by recourse to a guard’s testimony is indefensible.
In short, the trial court’s Order contains material misrepresentations of the
factual record, ignores the reliable experts’ assessments, and fails to apply the
relevant standard in concluding that Mays is competent to be executed. As such, the
Order “lies outside the zone of reasonable disagreement” and reflects an abuse of
discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
Deferring to this Order would make a mockery of the relevant legal precedents and
of Mays’s state and federal constitutional rights.
65
The Dispositive Facts and Rationale Underlying Battaglia v. State Are
Readily Distinguishable from this Case.
To determine whether a trial court abused its discretion, a reviewing court
must know the basis for the trial court’s ruling. Yet the Order at issue here is devoid
of legal analysis. See APPENDIX A. The Order includes no more than a fleeting
reference to two legal precedents in the following sentence: “Randall May is
competent to be executed pursuant to TCCP Article 46.05 and the guidelines set
forth in Panetti and Battaglia.” Id. at 2. Presumably, “Battaglia” refers to this Court’s
decision in Battaglia v. State, 537 S.W.3d 57 (Tex. Crim. App, 2017), which issued
on September 20, 2017—the same day that Proposed Findings of Fact and
Conclusions of Law were filed on Mays’s behalf and 12 days before the Order at
issue here was entered.
The factual underpinnings of Battaglia are, however, fundamentally different
from the instant case. Therefore, reliance on Battaglia to support the trial court’s
conclusion is unjustified. None of the rationales identified in Battaglia are found in
the evidentiary record adduced below.
The trial court undertook no legal analysis, so it failed to apprehend
that Battaglia is readily distinguishable.
1.
Battaglia, unlike this case, specifically rests on findings that the
movant was malingering.
The central theme in both the trial court’s and this Court’s opinions in
Battaglia was the belief that John Battaglia was malingering and therefore did not
66
actually suffer from a mental illness—or at least was faking a lack of rational
understanding about his imminent execution.
Of the 28 findings the trial judge noted under the rubric of “Mental Health
Evaluations,” 21 of them (19-39) highlighted the belief that Battaglia was
malingering. See APPENDIX G [Texas v. Battaglia, No. F01-52159-H (Tex. Dist. Ct.
Nov. 18, 2016]. The trial judge’s conclusions are also expressly based on testimony
related to possible malingering. The trial judge, for instance, voiced “serious
concerns about Battaglia’s credibility” and therefore found that “the Court does not
believe that Battaglia suffers from a severe mental illness” and that “the Court
believes that Battaglia is feigning or exaggerating his symptoms of mental illness.”
Id. at *9, 11, 13.
Similarly, much of this Court’s lengthy opinion in Battaglia is dedicated to
discussing evidence that Battaglia was malingering with respect to his mental illness
and delusions. See Battaglia v. State, 537 S.W. 57 (Tex. Crim. App. 2017). Indeed,
the word “malingering” is mentioned 40 times in the majority’s opinion. See id.
To support its concerns about malingering, this Court in Battaglia quotes at
length from a recorded call between Battaglia and his father in which Battaglia
discussed his competency litigation as “the old Catch-22,” alluding to Joseph
Heller’s famous novel:
Battaglia said “I’ve been trying to let everybody know how competent
I was, but I wasn’t sure if I was being successful or not.” Battaglia
67
described it as “the old Catch-22” that “You can’t be incompetent
unless unless [sic] you think you’re not incompetent.” Battaglia told his
father, “it’s been awhile since I’ve read Joseph Heller.”
537 S.W.3d at 92-93. This Court’s opinion also highlights suspicious material
extracted from other TDCJ-recorded calls in which Battaglia stated that:
• I am “doing the best I can, alright. They’re going to kill me December 7th, ok,
no matter what. So whatever I do I’m gonna [sic] try to keep that from
happening;”
• “I can’t sit here and just do nothing. That’s how everybody else gets killed;”
• “It’s a damn chess game.”
Id.
By contrast, during the evidentiary hearing in this case, the State had no
recordings, or any competent evidence whatsoever, to support the argument that
Mays might be malingering symptoms of mental illness. Plainly, the State would
have attempted to marshal such evidence if any such evidence actually existed.
Indeed, the record establishes that the State photographed Mays’s cell and
confiscated materials after his 46.05 motion was filed, presumably looking for such
evidence. See DX53:
68
Quite simply, malingering is not an issue in this case. That critical fact
distinguishes Mays’s case not only from Battaglia’s but from other competency-tobe-executed cases highlighted in this Court’s Battaglia decision. See, e.g.:
• Battaglia, 537 S.W.3d at 66: discussing Panetti v. Quarterman, No. A-04CA-042-SS, 2008 WL 2338498, at *2 (W.D. Tex. Mar. 26, 2008) and noting
that two experts had, at one point, concluded that Scott Panetti might be
fabricating his symptoms to thwart their attempts to administer structured
examinations designed to detect malingering; id. at 95 (“Like Battaglia, there
was evidence that Panetti had a sophisticated understanding of his case, and
there was some evidence of malingering, exhibited by his normal telephone
conversations with his family members”);
• Battaglia, 537 S.W.3d at 69-71: discussing Wood v. Thaler, 787 F. Supp. 2d
458 (W.D. Tex. 2011), wherein an expert found that the defendant was
69
malingering, the court ruled that the defendant’s allege mental illness “was
little more than a ‘ruse’”;
• Battaglia, 537 S.W.3d at 74-75: discussing Eldridge v. Thaler, No. H-051847, 2013 WL 416210 (S.D. Tex. Jan. 31, 2013), wherein two experts who
had evaluated Eldridge believed he was malingering; id. at 95-96 (“Like
Battaglia, Gerald Cornelius Eldridge also expressed delusional beliefs…. and
there was evidence to support a finding of malingering, thus the trial court’s
conclusion that he was competent to be executed was upheld.”).
No such comparison could be made with respect to the opinions of the courtappointed experts who examined Mays because no expert suggested Mays might be
malingering.
Additionally, in Battaglia, this Court emphasized that the absence of evidence
of malingering should be significant to the competency analysis. Battaglia, 537
S.W.3d at 76-77 (discussing Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d
1173, 1190 (11th Cir. 2017).20 The Court made this point by explicitly contrasting
the facts of Battaglia with Madison: “[s]ignificantly, unlike in this case, all experts
agreed that there was no indication that Madison was malingering.” Battaglia, 537
S.W.3d at 96. That is, in Battaglia this Court’s view that three of the four experts’
testimony supported the notion that Battaglia was malingering was significant, if not
20
The 11th Circuit’s decision was subsequently overruled in Dunn v. Madison, 138 S. Ct.
9 (2017). However, the Supreme Court’s decision was narrowly based on the standard of review
available under the Antiterrorism and Effective Death Penalty Act. There was no mention of
malingering in the decision. Thus, the aspect of the 11th Circuit’s decision that is cited approvingly
in Battaglia remains good law. Moreover, the Supreme Court has since granted Madison’s petition
of certiorari to address the merits of his Ford claim. See Madison v. Alabama, No. 17-705 (2018).
70
conclusive. Battaglia certainly suggests a causal connection between evidence of
possible malingering and the decision to affirm the conclusion that Battaglia was
competent to be executed: “there is evidence in the record to support the trial court’s
ruling that Battaglia is malingering and therefore competent to be executed.”
Battaglia, 537 S.W.3d at 96 (emphasis added).
Again, there is no evidence whatsoever that Mays is malingering. None of
the three mental health experts found any indication that Mays is malingering
symptoms of mental illness. DX42 at 27 (Dr. Woods); 3 EHRR 43 (Dr. Price); DX35
at 6-7; 2 EHRR 40 (Dr. Agharkar). Further, all agreed that he suffers from an
incurable, degenerative mental illness. See pp. 23-31, supra.
2.
Battaglia, unlike this case, emphasizes the movant’s superior
intellect as support for the proposition that he was malingering.
In Battaglia, one key reason the trial court offered for finding that Battaglia
was malingering was “[t]he undisputed evidence” that he was “not a typical inmate.
He is highly intelligent, educated, and well-read.” APPENDIX G at *9. Battaglia held
Bachelors and Masters degrees and had been both a practicing CPA and a CFO for
an oil company. See id. at *9-10. He had a “superior IQ and a memory ability
regarding long strings of words and concepts higher than 99% of the population.”
Id. at *10. The trial judge also gave much weight to the fact that Battaglia had read
Catch-22 and that he had taken pains to obtain case law about the issue of
71
competency-to-be-executed from the prison library just two weeks before his
scheduled execution. See APPENDIX G at *10-11.
This Court similarly upheld the trial court, in part, because of Battaglia’s
intelligence. See Battaglia, 537 S.W.3d at 92 (“In this case, the trial court found that
Battaglia . . . has a motive and the intellectual capability ‘to maintain a deliberate
ploy or ruse to avoid his execution.’”). This Court explained that Dr. Proctor
admitted that “it is possible for an intelligent person to ‘feign delusions.’” Id. at 84.
The Court similarly explained that Dr. Womack testified that Battaglia was a “highly
intelligent person who has had the time and motivation to begin creating a complex,
paranoid story line that he could have practiced over the years,” id. at 88, and that
“Battaglia is intelligent and sophisticated enough to be able to fake the tests such
that an examiner would believe that he has a delusional disorder or some other
mental illness.” Id. at 89.
By contrast, Mays did not make it to the tenth grade. DX4 at RM199. When
given a mental health screening by UTMB, the results suggested at least belowaverage intelligence and below-average executive functioning. See DX9 at RM
1152. Then, when Dr. Mayfield gave Mays a full battery of neuropsychological tests,
his scores showed significant impairment in attention and memory abilities across
multiple tests and a markedly low IQ. See DX4 at RM176-78.
72
To fail to account for this considerable factual distinction in relying on
Battaglia reflects an abuse of discretion.
Battaglia, unlike this case, involves a movant whose delusions seemed
to emerge in the lead up to his execution.
In Battaglia, both the trial court and this Court emphasized that Battaglia’s
delusional thinking did not seem to manifest in records until shortly before his
scheduled execution. As the trial court noted:
in fourteen years on death row, Battaglia has not been
prescribed any psychiatric medication, not been on the
mental health caseload, and not raised any red flags during
the mandatory 90-mental status [sic] exams. Moreover,
with the exception of his initial intake screening, Battaglia
has received only one other mental health referral, which
was ultimately determined to be a misunderstanding.
APPENDIX G at *9. Likewise, this Court noted the lack of mental health “red flags”
during Battaglia’s more than fourteen years on death row. Battaglia, 537 S.W.3d at
93.
By contrast, the evidentiary record amassed in this case suggests that it is an
ill-advised ipse dixit to leap to the conclusion that the lack of mental health treatment
on death row alone indicates a lack of mental illness. As the current head of mental
health services for Texas’s death row acknowledged on the stand, most referrals for
psychiatric treatment arise only when someone is a flagrant danger to themselves or
others. 5 EHRR 42-43. In any event, the evidence of Mays’s specific symptoms date
back decades. See pp. 8-23, supra. Even TDCJ/UTMB has repeatedly noted his
73
mental illness and recommended him for psychiatric evaluations. DX3 at RM21;
DX4 at RM308; DX4 at RM608-9; DX 9 at RM1152. But those recommendations
were not followed—until the eve of the evidentiary hearing in this 46.05 proceeding.
5 EHRR 15. Conspicuously, the State made no attempt to introduce into evidence
the results of its agent’s most recent psychiatric evaluation of Mays.
Unlike the record before the Court in Battaglia, Mays has a long history of
severe mental illness stretching back to well before he was sentenced to death. To
find Mays competent to be executed based on Battaglia, where the movant had no
history of delusional thinking until his execution date was set—and who was an
affluent, highly educated individual with access to resources that Mays never had—
is an abuse of discretion.
Battaglia, unlike this case, involves a movant whose delusions are
reputedly typical of a prison subculture.
Yet another critical distinction is that the ruling in Battaglia is based in part
on a finding that Battaglia’s late-onset delusions revolved around conspiratorial
notions that this Court believes are typical of a prison subculture and thus, per the
Court’s reading of the DSM, should not necessarily be a basis for finding a person
clinically delusional. See Battaglia, 537 S.W.3d at 92.
By contrast, Mays’s delusions are not just persecutory feelings that actors in
the criminal justice system are “out to get him.” For instance, talking to someone
who was not there,” as Mays has done, is not accepted in any subculture. DX4 at
74
RM260. Also, the evidentiary record shows that Mays’s long history of mental
illness, which included paranoid thinking and fears of being poisoned, arose well
before he was incarcerated. See, e.g., DX42 at 26 (finding that Mays had a history
of delusions and hallucinations, with symptoms spanning decades).
Additionally, Mays believes that he has invented novel technology for a
renewable windmill, which is hardly the type of persecutory delusion that is
commonplace in a prison environment. See DX35 at 2. Similarly, his belief that
“gases in the air [were] affecting his breathing,” DX7 at 21, is not a delusion related
to “claims of wrongful prosecution and conspiracies by judges, witnesses,
prosecutors, and defense attorneys [that] are common and normally accepted within
a prison subculture.” APPENDIX G at *9; Battaglia, at 537 S.W.3d at 924. Although
Mays now believes he is being persecuted as a result of his invention, his delusional
thinking was evident well before his incarceration, reflecting decades of untreated
mental illness. See pp. 8-14, supra.
As outlined above, no conceivable basis exists for the trial court’s blithe
reliance on Battaglia. When applying precedent “one well-established rule” is that
“each case must be considered on its own facts.” Etheredge v. State, 542 S.W.2d
148, 150 (Tex. Crim. App. 1976). That is, when applying precedent a court is
“obligated to consider all circumstances of this case, both obvious and unique, that
might set it apart from” the precedential case. Hernandez v. State, 939 S.W.2d 173,
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177–78 (Tex. Crim. App. 1997). Significant factual circumstances distinguish the
facts of Battaglia and Mays’s case. Battaglia cannot, therefore, provide a sound
basis for finding Mays competent-to-be-executed without accounting for these
material factual distinctions. Because the trial court made no effort to address these
distinctions, its Order is not entitled to any deference. See APPENDIX A. Moreover, a
fair review of the evidentiary record shows that Mays adduced more than the
requisite preponderance of the evidence to establish his incompetency-to-beexecuted. See 1-19 EHRR.
If Battaglia can be used to justify affirming the trial court’s Order,
then Battaglia cannot be squared with the Supreme Court’s
incompetency-to-be-executed jurisprudence.
Were this Court to hold that Battaglia permits affirming the trial court’s
Order, such a holding would expose a rift with the Supreme Court’s incompetencyto-be-executed jurisprudence in violation of Mays’s rights under the Eighth and
Fourteenth Amendments to the Constitution, as articulated in Ford v. Wainwright,
477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007).
The Fifth Circuit initially misconstrued the constitutional dictates announced
in Ford, which led to the Supreme Court having to revisit the issue in Panetti. In
holding that the Fifth Circuit’s test was too restrictive, Panetti looked to the
common-law underpinnings of Ford’s ban on executing an incompetent person,
focusing on the role competency plays in furthering the retributive purpose of capital
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punishment. If a death-sentence offender “has no comprehension of why he has
been singled out and stripped of his fundamental right to life,” then the retributive
purpose of the punishment cannot be fulfilled. Panetti, 551 U.S. at 957 (citing Ford,
477 U.S. at 409–10). According to the Supreme Court, a key justification for capital
punishment is to “make the offender recognize at last the gravity of his crime and to
allow the community as a whole, including the surviving family and friends of the
victim, to affirm its own judgment that the culpability of the prisoner is so serious
that the ultimate penalty must be sought and imposed.” Id. at 958. These goals,
however, are not achievable “if the prisoner’s mental state is so distorted by a mental
illness that his awareness of the crime and punishment has little or no relation to the
understanding of those concepts shared by the community as a whole.” Id. at 958–
59. Thus, “[t]he principles set forth in Ford are put at risk by a rule that deems
delusions relevant only with respect to the State’s announced reason for a
punishment or the fact of an imminent execution.” Id. at 959.
If this Court’s recent decision in Battaglia can be construed as permitting a
return to the pre-Panetti standard, then Battaglia needs to be revisited. Battaglia is
factually distinguishable from Mays’s case in every material way. Thus, the only
way Battaglia could dictate an affirmance is if Battaglia somehow stands for the
proposition that, in 46.05 proceedings, trial courts are free to decide that an
offender’s delusions are largely irrelevant so long as there is evidence that he knows
77
the State plans to execute him and there is evidence that he can read and write at a
sixth-grade level.
That is not and cannot be the test.
A trial court is supposed to make its merits determination regarding the issue
of incompetency-to-be-executed based on the assessments of qualified mental health
experts in accordance with the relevant professional standards because the Eighth
Amendment prohibits the execution of inmates who are presently incompetent.
Ford, 477 U.S. at 409-10; TEX. CODE CRIM. PROC. art. 46.05(k).
The competency inquiry is analogous to the inquiry arising from claims of
intellectual disability. In both instances, the legal inquiry arises from a categorical
ban announced by the Supreme Court of the United States: in Ford v. Wainwright
and Atkins v. Virginia, respectively. And in both instances, the Supreme Court has
directed that the legal inquiry be based on prevailing clinical understanding
regarding matters of mental health. See Panetti, 551 U.S. at 962 (emphasizing the
crucial role of expert psychiatric evidence in assessing competency-to-be-executed);
Moore v. Texas, 137 S. Ct. 1039, 1050-53 (2017) (rejecting reliance on nonclinical
factors and requiring reliance on prevailing clinical standards for assessing
intellectual disability). In both instances, the decision-maker should not rely on
court-invented standards that risk executing those whom the Supreme Court has
made clear are to be exempt under the Eighth Amendment.
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Both clearly established federal constitutional law and the plain language of
Article 46.05 say that assessments by mental health experts are required to resolve
the issue of competency-to-be-executed. If a trial court can whimsically disregard
the reliable opinions of duly qualified mental health experts and invent random
reasons to justify its conclusion, then the engagement of such experts is no more
than a ruse. This Court cannot endorse such cynicism under the auspices of a lower
court’s “discretion” without risking a demoralizing effect on the law.
Any of the numerous errors recounted above is a reason to conclude that the
trial court abused its discretion. Cumulatively, these errors suggest an alarming
disregard for the gravity of the task at issue, for the constitutional principles at stake,
and for the relevant legal precedents.
The record amassed below contains overwhelming evidence that Randall
Mays has long suffered from serious mental illness, that he is currently tormented
by delusions, and that he lacks a rational understanding of why the State of Texas
intends to execute him. Since executing him in this condition would serve no
legitimate penological purpose, under Panetti, Mays is currently incompetent to be
executed. The Court, therefore, should find that the trial court abused its discretion
and render judgment that Randall Mays is currently incompetent to be executed.
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PRAYER
For the foregoing reasons, this Court should reverse the decision of the trial
court and render judgment that Mays established by a preponderance of the evidence
that he is currently incompetent to be executed.
Respectfully submitted,
OFFICE OF CAPITAL AND FORENSIC WRITS
/s/ Gretchen S. Sween
Benjamin Wolff, Director
Benjamin.Wolff@ocfw.texas.gov
Gretchen Sween, Counsel of Record
Gretchen.Sween@ocfw.texas.gov
Stephen F. Austin Building
1700 N. Congress Avenue, Suite 460
Austin, TX 78711
(512) 463-8600
(512) 463-8590 (Fax)
Attorneys for Randall Mays
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CERTIFICATE OF SERVICE
I certify that on April 9, 2018, a true and correct copy of this document was served
on Mark Hall of the Henderson County District Attorney’s Office by Texas efile
and email. See Tex. Rule App. Proc. 9.5 and Tex. Rule App. Proc. 68.11.
CERTIFICATE OF COMPLIANCE
I certify that this document complies with: (1) the type-volume limitations because
it is computer-generated and does not exceed 37,500 words. Using the word-count
feature of Microsoft Word, this document contains 17,729 words excluding the
following: caption, identity of parties and counsel, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service certification,
certificate of compliance, and appendices; and (2) the typeface requirements because
it has been prepared in a proportionally-spaced typeface using Microsoft Word in
14-point font, 12-point font for footnotes. See TEX. R. APP. Proc. 9.4.
__/s/__________
Gretchen S. Sween
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.