NO. AP-76,580 IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS * * * ALBERT TURNER, Appellant v. THE STATE OF TEXAS, Appellee * * * APPELLANT’S BRIEF On Appeal in Cause No. 54,233 from the 268th Judicial District Court of Fort Bend County, Texas Hon. Brady Elliott, Judge Presiding ROBERT MORROW State Bar No. 14542600 24 Waterway Ave., Suite 660 The Woodlands, Texas 77380 Telephone: (281) 379-6901 Facsimile: (832) 813-0321 ORAL ARGUMENT REQUESTED AMY MARTIN State Bar No. 24041402 202 Travis St., Suite 300 Houston, Texas 77002 Telephone: (713) 320-3525 Facsimile: (866) 906-3745 ATTORNEYS FOR APPELLANT APPOINTED ON APPEAL ONLY TABLE OF CONTENTS INDEX OF AUTHORITIES ........................................................................................... vi LIST OF PARTIES ......................................................................................................... ix STATEMENT OF THE CASE AND PROCEDURAL HISTORY ................................ 2 SUMMARY OF FACTS.................................................................................................. 2 SUMMARY OF THE ARGUMENTS ............................................................................ 8 ARGUMENTS ................................................................................................................. 9 POINT OF ERROR ONE ...................................................................................... 9 THE TRIAL COURT REVERSIBLY ERRED BY MISAPPLYING THE LAW DURING AN INFORMAL INQUIRY REGARDING APPELLANT’S COMPETENCY ON APRIL 18, 2011 IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 46B ...................... 9 POINT OF ERROR TWO ..................................................................................... 9 THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT A COMPETENCY HEARING ON APRIL 18, 2011 IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS ........... 9 POINT OF ERROR THREE .............................................................................. 10 THE TRIAL COURT REVERSIBLY ERRED BY MISAPPLYING THE LAW DURING AN INFORMAL INQUIRY REGARDING APPELLANT’S COMPETENCY ON APRIL 26, 2011 IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 46B .................... 10 POINT OF ERROR FOUR ................................................................................. 10 THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT A COMPETENCY HEARING ON APRIL 26, 2011 IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS ......... 10 POINT OF ERROR FIVE ................................................................................... 10 THE TRIAL COURT REVERSIBLY ERRED BY MISAPPLYING THE LAW DURING AN INFORMAL INQUIRY REGARDING APPELLANT’S COMPETENCY ON MAY 20, 2011 IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE 46B ............................................ 10 POINT OF ERROR SIX ...................................................................................... 10 ii THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT A COMPETENCY HEARING ON MAY 20, 2011 IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS ......... 10 POINT OF ERROR SEVEN ............................................................................... 10 THE TRIAL COURT REVERSIBLY ERRED BY REFUSING TO CONDUCT AN INFORMAL COMPETENCY INQUIRY DURING APPELLANT’S TESTIMONY IN THE CULPABILITY PHASE OF TRIAL .................................................................................................................... 10 POINT OF ERROR EIGHT ............................................................................... 10 THE TRIAL COURT REVERSIBLY ERRED BY REFUSING TO CONDUCT AN INFORMAL COMPETENCY INQUIRY DURING APPELLANT’S TESTIMONY IN THE CULPABILITY PHASE OF TRIAL .................................................................................................................... 10 POINT OF ERROR NINE .................................................................................. 29 THIS COURT SHOULD ABATE THE APPEAL AND REMAND TO THE TRIAL COURT FOR A DETERMINATION OF APPELLANT’S COMPETENCY DURING TRIAL........................................................................ 29 POINT OF ERROR TEN .................................................................................... 31 THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT, TO BE TRIED AND CONVICTED, IN VIOLATION OF HIS CONSTITUIONAL RIGHT TO DUE PROCESS...................................................................................................... 31 POINT OF ERROR ELEVEN ............................................................................ 31 THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT TO BE SENTENCED TO DEATH IN VIOLATION OF HIS CONSTITUIONAL RIGHT TO DUE PROCESS ............................................................................................................... 31 POINT OF ERROR TWELVE ........................................................................... 31 THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT, TO BE TRIED WITHOUT THE ABILITY TO CONFER WITH HIS ATTORNEYS, THEREBY DENYING APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL ............. 31 POINT OF ERROR THIRTEEN ....................................................................... 31 iii THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT, TO BE TRIED WITHOUT THE ABILITY TO CONFER WITH HIS ATTORNEYS, THEREBY DENYING APPELLANT HIS RIGHT TO CONFRONTATION ........................ 31 POINT OF ERROR FOURTEEN ...................................................................... 32 THE TRIAL COURT REVERSIBLY ERRED BY LETTING APPELLANT, WHO WAS INCOMPETENT, WAIVE HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION ........................... 32 POINT OF ERROR FIFTEEN ........................................................................... 41 THE TRIAL COURT REVERSIBLY ERRED BY CONDUCTING A MOTION FOR NEW TRIAL HEARING WITHOUT THE PRESENCE OF THE APPELLANT IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE 33.03 ......................................................................... 41 POINT OF ERROR SIXTEEN ........................................................................... 41 THE TRIAL COURT REVERSIBLY ERRED BY CONDUCTING A MOTION FOR NEW TRIAL HEARING WITHOUT THE PRESENCE OF THE APPELLANT IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS .................................................................................. 41 POINT OF ERROR SEVENTEEN .................................................................... 41 THE TRIAL COURT REVERSIBLY ERRED BY CONDUCTING A MOTION FOR NEW TRIAL HEARING WITHOUT THE PRESENCE OF THE APPELLANT IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 1.051(a) ................................................... 41 POINT OF ERROR EIGHTEEN ....................................................................... 51 THE TRIAL COURT REVERSIBLY ERRED WHEN IT FAILED TO ALLOW APPELLANT TO REPRESENT HIMSELF IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO WAIVE COUNSEL ............................ 51 POINT OF ERROR NINETEEN ....................................................................... 51 THE TRIAL COURT REVERSIBLY ERRED WHEN IT FAILED TO GIVE APPELLANT FARETTA WARNINGS WHEN HE DECLARED HE WANTED TO REPRESENT HIMSELF ............................................................... 51 POINT OF ERROR TWENTY........................................................................... 51 iv THE TRIAL COURT REVERSIBLY ERRED WHEN IT FAILED TO GIVE APPELLANT FARETTA WARNINGS WHEN HE DECLARED HE WANTED TO REPRESENT HIMSELF IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 1.051(g) ................................. 51 POINT OF ERROR TWENTY-ONE................................................................. 58 THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR ALEX SHANNON IN VIOLATION OF BATSON V. KENTUCKY........................................................................................ 58 POINT OF ERROR TWENTY-TWO ............................................................... 58 THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR JUSTIN BROWN IN VIOLATION OF BATSON V. KENTUCKY........................................................................................ 58 POINT OF ERROR TWENTY-THREE ........................................................... 58 THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR SAMPSON RUBIN IN VIOLATION OF BATSON V. KENTUCKY........................................................................................ 58 POINT OF ERROR TWENTY-FOUR .............................................................. 58 THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR KWAMEENA EDWARDSMONTGOMERY IN VIOLATION OF BATSON V. KENTUCKY ....................... 58 CONCLUSION AND PRAYER FOR RELIEF ............................................................ 68 CERTIFICATE OF SERVICE ...................................................................................... 69 v INDEX OF AUTHORITIES Cases Adanandus v. State, 866 S.W.2d 210 (Tex. Crim. App. 1993) ............................. 43, 44, 45 Alcott v. State, 51 S.W.3d 596 (Tex. Crim. App. 2001) .................................................... 23 Aldridge v. Thaler, 2010 WL 1050335 (S.D. Tex. Mar. 17, 2010) ................. 28, 33, 34, 36 Baltierra v. State, 586 S.W.2d 553 (Tex. Crim. App. 1979) ............................................ 38 Batson v. Kentucky 476 U.S. 79 (1986)....................................................................... 59, 60 Bishop v. United States, 350 U.S. 961 (1956) ................................................................... 32 Bledsoe v. State, 936 S.W.2d 350 (Tex. App.—El Paso 1996, no pet.) ............................ 44 Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990) ......................................................... 28 Boykin v. Alabama, 395 U.S. 238 (1969) .......................................................................... 39 Brown v. State, 617 S.W.2d 234 (Tex. Crim. App. 1981) ................................................. 39 Burgess v. State, 816 S.W.2d 424 (Tex. Crim. App. 1991) ....................................... 56, 57 Casey v. State, 924 S.W.2d 946 (Tex. Crim. App. 1996) ................................................. 33 Collier v. State, 959 S.W.2d 621 (Tex. Crim. App. 1997) .......................................... 56, 57 Coons v. State, 758 S.W.2d 330 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd) ...... 42 Cooper v. Oklahoma, 517 U.S. 348 (1996) ....................................................................... 32 Crawford v. Washington, 541 U.S. 36 (2004) ................................................................... 37 Drope v. Missouri, 420 U.S. 162 (1975) ............................................................... 24, 27, 36 Durgan v. State, 259 S.W.3d 219 (Tex. App.—Beaumont 2008, no pet.) ........................ 30 Evitts v. Lucey, 469 U.S. 387 (1985) ................................................................................. 47 Ex parte Hagans, 558 S.W.2d 457 (Tex. Crim .App.1977) .............................................. 32 Ex parte Harris, 592 S.W.2d 624 (Tex. Crim. App. 1980) ............................................... 30 Ex parte Harris, 618 S.W.2d 369 (Tex. Crim. App. 1981). .............................................. 30 Ex parte Lawton, 2006 WL 3692632 (Tex. Crim. App. Dec. 13, 2006) ........................... 29 Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. 1979) ................................................ 32 Ex parte Long, 558 S.W.2d 894 (Tex. Crim. App. 1977) ................................................. 24 Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004) ............................................... 35 Faretta v. California, 422 U.S. 806 (1975) ................................................................. 51, 57 Garcia v. State, 149 S.W.3d 135 (Tex. Crim. App. 2004) ................................................ 38 vi Godinez v. Moran, 509 U.S. 389 (1993) ..................................................................... 52, 57 Goffney v. State, 843 S.W.2d 583 (Tex. Crim. App. 1992) ............................................... 50 Green v. Johnson, 116 F.3d 1115 (5th Cir. 1997) ............................................................. 43 Harrison v. United States, 392 U.S. 219 (1968) ............................................................... 40 Henderson v. State, 127 S.W.2d 902 (Tex. Crim. App. 1939) .......................................... 45 Huff v. State, 807 S.W.2d 325 (Tex. Crim. App. 1991) .................................................... 30 Iniquez v. State, 2012 WL 2742632 (Tex. App.—Austin July 6, 2012, no. pet. h.) ........ 21 J.E.B. v. Alabama, 511 U.S. 127 (1994) ............................................................... 60, 62, 68 Johnson v. State, 676 S.W.2d 416 (Tex. Crim. App. 1984). ............................................. 55 Johnson v. Zerbst, 304 U.S. 458 (1938) ............................................................................ 39 Kentucky v. Stincer, 482 U.S. 730 (1987) ......................................................................... 43 Lawrence v. State, 169 S.W.3d 319 (Tex. App.—Fort Worth 2005, pet. ref'd) .......... 17, 33 Linscomb v. State, 829 S.W.2d 164 ................................................................................... 61 Lokos v. Capps, 625 F.2d 1258 (5th Cir. 1980) ................................................................ 28 Malloy v. Hogan, 378 U.S. 1 (1964) ................................................................................. 39 Malone v. State, 163 S.W.3d 785 (Tex. App.—Texarkana 2005, pet. ref'd) .................... 20 Mandujano v. State, 966 S.W.2d 816 (Tex. App.—Austin 1998) .............................. 61, 64 Mares v. State, 571 S.W.2d 303 (Tex. Crim. App. 1978) ................................................. 42 Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) ................................................. 50 McDaniel v. State, 98 S.W.3d 704 (Tex. Crim. App. 2003) ............................................. 23 Miller-El v. Cockrell, 537 U.S. 322 (2005) ....................................................................... 61 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ..................................... 1, 2 Montoya v. State, 291 S.W.3d 420 (Tex. Crim. App. 2009) ....................................... 18, 23 Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999) ........................................... 19, 20 Morris v. State, 301 S.W.3d 281 (Tex. Crim. App. 2009) ................................................ 17 Phillips v. State, 288 S.W.2d 775 (Tex. Crim. App. 1956) ............................................... 42 Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996) ........................................... 62 Powers v. Ohio, 499 U.S. 400 (1991)................................................................................ 60 Purkett v. Elem, 514 U.S. 765 (1995)......................................................................... 61, 64 Reed v. State, 112 S.W.3d 706 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) ........ 27 Riggins v. Nevada, 504 U.S. 127 (1992) ........................................................................... 33 vii Roberts v. Dretke, 381 F.3d 491 (5th Cir. 2004) ......................................................... 16, 29 Routier v. State, 112 S.W.3d 554 (Tex. Crim. App.2003) ................................................ 43 Salazar v. State, 795 S.W.2d 187 (Tex. Crim. App. 1990) ............................................... 61 Schoor v. State, 279 S.W.3d 844 (Tex. App.—Amarillo 2009, pet. ref'd)........................ 36 Sisco v. State, 599 S.W.2d 607 (Tex. Crim. App. 1980) ................................................... 22 Slay v. State, 2005 WL 1634952 (Tex. App.—Dallas July 13, 2005, no pet.) ................. 43 Snyder v. Massachusetts, 291 U.S. 97 (1934) ............................................................. 43, 61 Sumrell v. State, 326 S.W.3d 621 (Tex. App.—Dallas 2009, pet. dism’d) ....................... 46 United States v. Davis, 01-30656, 2001 WL 34712238 (5th Cir. July 17, 2001) ............. 55 Watts v. Singletary, 87 F.3d 1282 (11th Cir.1996) ...................................................... 28, 36 West v. State, 752 S.W.2d 593 (Tex. App.—Tyler 1987, pet. ref'd) ................................. 45 Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996) ............................................. 61 Statutes Texas Code of Criminal Procedure Article 1.051(g) ........................................................ 52 Texas Code of Criminal Procedure Article 35.17 ............................................................. 59 Texas Code of Criminal Procedure Article 35.261 ........................................................... 59 Texas Code of Criminal Procedure Article 46B.............................................. 11, 17, 22, 33 Texas Penal Code Section 1.02 ......................................................................................... 33 viii LIST OF PARTIES Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant submits the Following list of parties and counsel: Mr. Albert Turner Appellant-TDCJ-ID Inmate Mr. Fred Felcman Mr. Chad Bridges Ms. Jill Stotts Prosecutors at Trial Fort Bend County District Attorney’s Office 301 Jackson Richmond, Texas 77469 Mr. Pat McCann Mr. Tyrone Moncriffe Defense Counsel at Trial 909 Texas Ave., Suite 205 Houston, Texas 77002 Hon. Brady Elliott Presiding Judge 301 Jackson Richmond, Texas 77469 Mr. Robert Morrow Defense Counsel on Appeal 24 Waterway Ave., Suite 660 The Woodlands, Texas 77380 Ms. Amy Martin Defense Counsel on Appeal 202 Travis St., Suite 300 Houston, Texas 77002 Not yet named State’s Appellate Counsel Fort Bend County District Attorney’s Office 301 Jackson Richmond, Texas 77469 ix NO. AP-76,580 IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS * * * ALBERT TURNER, Appellant v. THE STATE OF TEXAS, Appellee * * * APPELLANT’S BRIEF On Appeal in Cause No. 54,233 from the 268th Judicial District Court of Fort Bend County, Texas Hon. Brady Elliott, Judge Presiding TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: NOW COMES ALBERT TURNER, Appellant in this appeal of his capital murder conviction and sentence of death, by and through his counsel ROBERT MORROW, appointed on appeal only, and files his Appellant’s Brief. In support of his requests for reversal and remand of his conviction and punishment he respectfully shows the Court as follows: STATEMENT OF THE CASE AND PROCEDURAL HISTORY This is the appeal from Appellant’s capital murder conviction and death sentence. Appellant was indicted on April 5, 2010 for Capital Murder for events that occurred on December 27, 2009. (CR1, 25).1 Upon his plea of not guilty to a jury, on May 25, 2011 Appellant was tried in the 268th District Court of Fort Bend County, Texas, with the Honorable Brady Elliott presiding. On May 31, 2011, he was convicted of capital murder. The Jury answered special issues such that he was sentenced to death on June 7, 2011. (CR4, 717). Appellant refused to sign his Certification of His Right to Appeal. (CR4, 721). Undersigned counsel was appointed to represent him on appeal only. (CR3, 510). A Motion for New Trial was filed on July 6, 2011. (CR4, 820). SUMMARY OF FACTS Appellant submits this summary of evidence as a preface pertinent to all points of error. Mr. Turner’s wife (Keitha) and mother-in-law (Betty Jo) were murdered in Betty Jo’s home on December 27, 2009 while his children were in the house. Mr. Turner was not there. And he did not kill the two women. (RR56, 47). The last time he saw any of his family was when he dropped by the house and gave his mother-in-law a stereo that was for Keitha. The four volumes of the Clerk’s Record will be referenced CR and the volume number, followed by the page number. (CR1, pg#). The Reporter’s Record will be referenced RR and the volume number, followed by the page number. (RR1, pg#). 1 2 Keitha was having an affair with Daryl Humphrey, the Mayor of Kendleton, Texas. After Humphrey told Mr. Turner about he and Keitha’s ten year long relationship, she admitted to it and also told him that his youngest child was not his. Humphrey was the child’s father. Mr. Turner texted Humphrey about this and Humphrey threatened him and told him that he could follow through on the threat. Humphrey approached him once outside of a Chinese restaurant and he had an associate with him. (RR56, 47). Mr. Turner was approached by the mayor on three or four different occasions. The night of the murders, Mr. Turner returned to his home and was uneasy. He didn’t know “what was going on.” He hadn’t been “explained anything” and there “were several text messages where that had come to pass, that they had text me.” (RR56, 58). When he arrived at his house there were two people on the side of his house. He could not forget the threat he had received from the mayor. The men were undoubtedly there to follow through. He ran. He discovered what had happened to his family on the internet while he was on the run. (RR56, 62). That’s when he knew that Keitha was not a part of the mayor’s plan. Mr. Turner’s daughter identified him as the man in the house because the mayor had hired a look-alike to commit the crime. He was on the run for more than two months and he did not visit his family in Florida because the mayor had promised that he would find Mr. Turner wherever he went. Ultimately he was arrested in a North Carolina mall because of an America’s Most Wanted episode that aired. He was taken to Fort Bend County, interrogated, charged with Capital Murder and appointed two lawyers. 3 ***** When Mr. Turner took the stand and told this story, it was not a lie. It was the reality in which he was, and likely still is, living2. His delusions and paranoia became progressively consuming. He was convinced that his lawyers were discussing his case with other inmates. (RR4, 5). Mr. Turner’s alibi testimony was unexpected and against counsel’s advice. During opening statement, the defense team began the presentation of the best defense available in hopes of saving Mr. Turner’s life. The attorneys conceded that Mr. Turner committed the crime and argued that the facts of the case did not legally amount to capital murder. Counsel’s argument that revolved around admitting the offense and taking responsibility for it and Mr. Turner’s alibi testimony were at such odds with one another because Mr. Turner had decompensated to a point where he could not meaningfully participate in his own defense. The tension between the defense theories made it impossible to have any defense at all. Par for the course Mr. Turner hated his defense team. He did not trust them. He did not like the choices they were making and he believed they were lazy. This is not an unusual (albeit erroneous) perception of court appointed counsel. As Attorney Pat McCann explained: “If I needed a lot of love, I would have been a fireman.” (RR12, 20). However, in this 2 Shortly after being transferred to Death Row, Mr. Turner was sent to the Skyview Unit, a mental health facility of the Texas Department of Criminal Justice. (RR68, 6). 4 case, these problems went well beyond the typical client dissatisfaction and rose to the level of incompetency. It is not unusual for counsel to make a decision that their client does not understand or agree with. Here, defense counsel requested to depose the children that witnessed their mother’s and grandmother’s murders. During a pre-trial hearing, Mr. Turner made an objection to the children’s depositions, claiming that it would be favorable to the prosecution (RR4, 5). Unsurprisingly, the lawyers won the battle and the depositions were taken. The children were deposed with Mr. Turner in a different room and unable to see anyone else in the room with them. He believed they were coerced from the beginning and that this mysterious process proved it. (RR56, 49). You’ll see it when you believe it Because of Mr. Turner’s dramatically impaired reality, everything that his defense team did and everything that took place in the courtroom affirmed his paranoid delusions. Trial began with Mr. Turner entrenched in a false reality and the belief that his lawyers were in cahoots with the State of Texas. His lawyers, despite the fact that they couldn’t rationally communicate with their client, had to do their job and put on the best defense possible. And that defense was that Mr. Turner was in denial about killing his wife and mother-in-law and that, legally, a conviction for the lesser included of murder would be the correct verdict. Mr. Turner was certain his lawyers did not believe him and that they refused to get the evidence that would prove what really happened. Mr. Turner requested a DNA test of 5 his child to prove that the mayor was her father. (RR10, 41). Ultimately, he would devolve into the delusion that his defense team was more than just apathetic—they were out to get him. At the first opportunity, his own attorney told the jury that Mr. Turner was obsessively jealous, abusive, and that he murdered his wife and mother-in-law. (RR53, 28). His alleged advocates also told the jury that he couldn’t “admit what he did, to himself or anyone else” and that “[h]e ran because he knew what he had done.” (RR53, 31). His own attorneys asked the jury to find him guilty of murder. (RR53, 31). Mr. Turner wanted the jury to hear the entire 911 tape because he maintained it contained exculpatory evidence. However, the trial court ordered that particular portion was not to be played. While being cross-examined, Appellant stated: “[Y]’all sped part of that tape. So, I’m wondering what’s going on.” (RR56, 67). During trial, the attorneys repeatedly had secret conversations about him with the Judge. (RR56, 42). He also knew that his lawyers were trying to say he was incompetent and get another lawyer to have guardianship over him. Mr. Turner told the Court: He's been saying this and trying to pretend. He went out and got a -- he tried to get a doctor to rule me incompetent. And the reason that he was trying to do that, he use the -- use the -- another defense attorney here tried to get legal guardianship of me so they could file stuff on my behalf instead of getting my family members. Why would you do that?3 (RR56, 73). 3 It was true that his lawyers had petitioned to have a guardian appointed for him. This only added fuel to the delusional fire. 6 ‘Tis a tale told by an idiot, full of sound and fury, signifying nothing –Shakespeare Mr. Turner, compelled by his delusion that his attorneys were betraying him, and desperate to prove his innocence, decided to exercise his right to testify. (RR56, 28). Unfortunately, testifying solidified his belief that the prosecutor, judge, and his own lawyers were all conspiring against him. Whenever Mr. Turner would try to explain the truth, the prosecutor would object and ask the judge to silence Mr. Turner, and the Judge usually did. (RR56, 45-46). His own counsel wanted to shut him up during his testimony, telling the Judge that Mr. Turner had “lost the capacity to actually continue to testify and to exercise his right; we would re-urge our competency motion at this time.” (RR56, 50). Mr. Turner demonstrated a lack of understanding as to what he was allowed to testify about (RR56, 37-39). While counsel was addressing the trial court, Mr. Turner interjected his concerns about the conspiracy against him: “Y’all don’t want me to tell this jury that you didn’t get the whole tape.” (RR56, 43). In response to questions about the aftermath of the murder, Mr. Turner said “I want the jury to look at that whole tape, the tape that Karissa -- that they sped over.” (RR56, 44). He was unable to respond directly to questions asked of him throughout the testimony. Instead, he continually interjected his concerns regarding the evidence against him: “There’s a reason that my DNA is not at that house.” (RR56, 45). The prosecution requested that the defendant be held in contempt of court for failing to respond to the questions asked (RR56, 46). 7 Ultimately, during the trial, Mr. Turner decompensated to quoting biblical verses and asking his attorney if he was putting stuff in his coffee and if the attorney was part of a secret society. (RR65, 13). Mr. Turner was not competent. His lawyers repeatedly asked for a competency hearing throughout the proceedings. Each time they were denied and each day Mr. Turner retreated further into his paranoia. SUMMARY OF THE ARGUMENTS POINTS OF ERROR ONE THROUGH EIGHT: In Points of Error One through Eight, Appellant argues that the trial court committed reversible error by repeatedly misapplying the Texas laws governing competency and by repeatedly refusing to conduct a competency hearing when necessary, denying Appellant’s right to Due Process. POINTS OF ERROR NINE THROUGH THIRTEEN: In Points of Error Nine through Thirteen, Appellant argues that the trial court committed reversible error by allowing Appellant, who was incompetent, to be tried, convicted, and sentenced to death, violating his right to Due Process. Forcing Appellant to trial while incompetent denied Appellant effective assistance of counsel and his constitutional right to confrontation. Appellant was also permitted to unintelligently and unknowingly waive his Fifth Amendment right against self-incrimination. POINTS OF ERROR FOURTEEN TRHOUGH SIXTEEN: In Points of Error Fourteen through Sixteen, Appellant argues that the trial court 8 committed reversible error by conducting the Motion for New Trial hearing without the presence of Appellant in violation of the Code of Criminal Procedure and his constitutional right to Due Process. POINTS OF ERROR SEVENTEEN THROUGH NINETEEN: In Points of Error Seventeen through Nineteen, Appellant argues that the trial court committed reversible error when it failed to allow Appellant to represent himself. The trial court also committed reversible error by failing to give Appellant the Faretta warnings. POINTS OF ERROR TWENTY THROUGH TWENTY-THREE: In Points of Error Twenty through Twenty-three, Appellant argues that the trial court committed reversible error by allowing the State to strike four jurors in violation of Batson v. Kentucky. ARGUMENTS POINT OF ERROR ONE THE TRIAL COURT REVERSIBLY ERRED BY MISAPPLYING THE LAW DURING AN INFORMAL INQUIRY REGARDING APPELLANT’S COMPETENCY ON APRIL 18, 2011 IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 46B POINT OF ERROR TWO THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT A COMPETENCY HEARING ON APRIL 18, 2011 IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS 9 POINT OF ERROR THREE THE TRIAL COURT REVERSIBLY ERRED BY MISAPPLYING THE LAW DURING AN INFORMAL INQUIRY REGARDING APPELLANT’S COMPETENCY ON APRIL 26, 2011 IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 46B POINT OF ERROR FOUR THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT A COMPETENCY HEARING ON APRIL 26, 2011 IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS POINT OF ERROR FIVE THE TRIAL COURT REVERSIBLY ERRED BY MISAPPLYING THE LAW DURING AN INFORMAL INQUIRY REGARDING APPELLANT’S COMPETENCY ON MAY 20, 2011 IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 46B POINT OF ERROR SIX THE TRIAL COURT REVERSIBLY ERRED BY DENYING APPELLANT A COMPETENCY HEARING ON MAY 20, 2011 IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS POINT OF ERROR SEVEN THE TRIAL COURT REVERSIBLY ERRED BY REFUSING TO CONDUCT AN INFORMAL COMPETENCY INQUIRY DURING APPELLANT’S TESTIMONY IN THE CULPABILITY PHASE OF TRIAL POINT OF ERROR EIGHT THE TRIAL COURT REVERSIBLY ERRED BY REFUSING TO CONDUCT AN INFORMAL COMPETENCY INQUIRY DURING APPELLANT’S TESTIMONY IN THE CULPABILITY PHASE OF TRIAL 10 Appellant’s above points of error are based on the same set of facts. As a result, the points will be briefed together in an attempt to avoid unnecessary repetition. Appellant submits this summary of evidence as a preface pertinent to all points of error, and sets out more particular details when necessary for an individual point. The subject of Mr. Turner’s competency was raised repeatedly during his trial. The process for determining and evaluating competency is set forth in Article 46B of the Texas Code of Criminal Procedure. That process was not followed here and, as a result, Mr. Turner was tried and convicted in violation of his Constitutional rights, including his right to Due Process. On May 17, 2010 Appellant’s attorney Ralph Gonzalez filed a Motion for a Competency Examination. (CR1, 29). The trial court appointed Dr. Axelrad and Dr. Gollaher to conduct examinations. (CR1, 39). Dr. Axelrad’s competency report was filed on August 27, 2010. (CR1, 183). Dr. Gollaher’s examination focused on sanity and Mr. Turner was found to be sane. On April 11, 2011, counsel apprised the Judge of their concerns regarding Mr. Turner’s competency and the need to address the issue again. (RR11, 8). The Court told counsel that it could be dealt with during voir dire. April 18, 2011, the first day of voir dire, the trial court heard Appellant’s Motion for a Contested Competency Hearing4. (RR12, 1). The Judge pointed out, referring to The statute now refers to a “competency trial.” However, for consistency and clarification the older phrase “competency hearing” will be used. 4 11 Counsel Tyrone Moncriffe’s affidavit, that Mr. Moncriffe’s “learned conclusions relative to the relationship” with Mr. Turner was the most relevant part of the affidavit and they “would be part of the competency hearing.” (RR12, 9). The Court evaluated Dr. Shawanda Anderson’s affidavit attached to Appellant’s motion. Dr. Anderson is a neuropsychologist who had visited with Appellant. (RR12, 10). The Court explained that the defense is entitled to only one competency evaluation “unless there is a gross change in the Defendant’s mental posture.”5 (RR12, 19). When explaining that Dr. Anderson’s report did not meet the requirements of Code of Criminal Procedure Article 46B, the Court stated that the affidavit did not provide a basis because “there has been one already performed” and denied the motion. (RR12, 23)6. On April 26, 2011, Mr. Turner’s counsel, Pat McCann, re-urged the motion for a competency hearing because all communication had “been shut down” with his client and was having “an impact on his ability to participate in – the voir dire process.” (RR18, 27). Again, the Court pointed out that “we’ve already had one [exam].” 7 But, faced with the evidence, the Court appointed Dr. Almeida, who had examined Mr. Turner previously, to see him again “to determine whether Mr. Turner’s status has changed since Often the parties stated that Appellant is requesting a “competency exam.” In fact, his attorneys were seeking a competency hearing. 6 In the hearing for the Motion for New Trial, the trial court again stated: “The law only affords one opportunity at that regard . . .” (RR65, 31). 7 The Court repeatedly noted that there has already been one exam (RR18, 27) and there was no “gross change” in Mr. Turner’s behavior. (RR12, 19). He notes that “there has already been one performed” (RR12, 23) and that the trial court had not been shown any changes. (RR56, 50). Only allowing a defendant one exam does not comport with the statute’s phrasing of “present ability.” 5 12 the last time a competency hearing occurred.”8 (RR20, 4). Before adjourning, the Court addressed Mr. Turner directly and told him that it is to his benefit to cooperate with the psychologist. (RR20, 5). At the May 20, 2011 hearing on Appellant’s Motion for a Contested Competency Hearing, Dr. Almeida testified and referred to the prior exams completed by the other doctors. (RR51, 10). She testified that Mr. Turner refused to see her on three different occasions and acquiesced on the fourth attempt. (RR51, 8). Because of his resistance, she was not able to determine competency. (RR51, 13). He chatted with the doctor, but did not want to be subjected to an exam and he did not want to sit down, despite being told that the exam was court ordered9. (RR51, 9). In addition to her interview, Dr. Almeida reviewed past competency evaluations. (RR51, 11). In her words, those reports reflected: “possible evidence of paranoid behavior, you know, some guarded – guardedness, suspicious behavior, paranoid behavior, paranoid thinking.”10 (RR51, 12). 8 A formal hearing had never been held. Mr. Turner’s paranoid delusion included the belief that there was a conspiracy against him involving the legal system. Knowing that the exam was court ordered made it less likely that he would participate. 10 Later, when Pat McCann tried to ask the doctor about Mr. Turner’s suspicion, the Court interjected: THE COURT: Where did that come out in any testimony? 9 MR. MCCANN: I'm sorry, your Honor. She just said -THE COURT: The term "suspicion?" MR. MCCANN: He was clearly suspicious of -- I will -- I will go back. Perhaps -THE COURT: Let's explore that because I didn’t hear that from the witness. 13 Dr. Almeida testified that Mr. Turner’s mistrust of her was not uncommon with those exhibiting paranoid thinking and it can be an indication of paranoid or delusional thinking. (RR51, 13). Because of Mr. Turner’s limited cooperation, Dr. Almeida was not able to “reach a professional opinion as to Mr. Turner’s competency to stand trial based upon” her interview. (Court’s Competency Exhibit #2). The Judge denied Appellant’s motion and pointed out that when Appellant’s attorney Mr. McCann spoke about suspicion, Mr. Turner “had a definite reaction . . . so he’s paying attention. He knows what’s going on.” (RR51, 38). “Remnants of a sad mind”11 Mr. Turner, against counsel’s advice, testified during the guilt-innocence portion of the trial. His testimony was that he was not at the house on the night of the offense and that he was being stalked by the Mayor of Kendleton who he believed was the father of his youngest child. During Mr. Turner’s testimony, defense counsel re-urged the competency motion. (RR56, 50). Mr. Turner testified that everyone was conspiring to hide evidence from the jury, that there was exculpatory information on the 911 tape that was not played, and that his children were being coerced. (RR56, 47). The Court denied the motion because there was not anything he had “been shown that changes anything that I have been shown before.” (RR56, 50). In an attempt to somehow lessen the damage of Mr. Turner’s testimony, counsel asked him if, “in his mind, all that drivel was true.” (RR56, 73). On cross-examination, when Mr. Turner didn’t understand what “dribble” [sic] meant, the prosecutor told him that it meant “lying.” Counsel made sure the jury knew that Mr. Turner’s testimony was not lies, but “the remnants of a sad mind.” (RR56, 75). 11 14 In fact, when the Court admonished Mr. Turner regarding the limitations of his testimony, Mr. Turner, for the first time, admitted he did not understand the process. (RR56, 28). The Court gave a detailed explanation that his testimony was limited “to whether you are guilty or not guilty . . . we will not go into matters other than that.” Mr. Turner responded: “No, I don’t understand that.” (RR56, 28). He stated that he did understand he would be cross-examined. (RR56, 29). However, when asked if he had anything to say, Mr. Turner responded: MR TURNER: Yes. You made a statement – on guilt or innocence. What limitations are you talking about as far as what I can say? THE COURT: It will be limited to the circumstances surrounding the charge of the crime itself, and it will not be beyond that. THE DEFENDANT: What is that? THE COURT: Mr. McCann can give you further descriptions of the limitations. All right? THE DEFENDANT: When does this take place? When will he give me the descriptions? THE COURT: We'll take a short recess, and he'll be able to give you guidance in that regard, both Mr. McCann and Mr. Moncriffe. (RR56, 30). When Mr. Turner affirmed his desire to testify, the Court attempted to explain the process once again and when asked if he understood, Mr. Turner replied: “Well, I tried to 15 object the other day – yesterday to what he was saying, and he made no objections to a certain issue, and I was cursed out for it, you know.”12 (RR56, 31). During cross-examination, counsel told the Court: “Clearly, my client has gone into a paranoid state that is beyond ridiculous at this point.” (RR56, 58). Mr. Turner continued his testimony and was ultimately sentenced to death without ever receiving a competency hearing. There’s a reason it’s called “process” Mr. Turner was in fact incompetent. However, Appellant is only required to show that the Court was supposed to have a hearing. It is not necessary to show that he was factually incompetent. Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004). Article 46B of the Texas Code of Criminal Procedure governs the issue of competency to stand trial13. Article 46B.003 provides the key definition: (a) A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person. (b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Issues that are relevant to a defendant’s competency include whether he can: (A) rationally understand the charges against him and the potential The Court responds to Mr. Turner’s description of his attorney cursing at him by stating: “Well, we'll be able to take that up at a later part, a later position.” (RR56, 31). It is unclear what the “later part” was. 12 13 Unless otherwise specified, all references to Articles refer to the Code of Criminal Procedure. 16 consequences of the pending criminal proceedings; (B) disclose to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal strategies and options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify Article 46B.024; Morris v. State, 301 S.W.3d 281, 286 (Tex. Crim. App. 2009). In Texas, the competency determination process can begin by either party calling the incompetency issue to the Court’s attention, or the Judge may sua sponte make an informal inquiry into the competency of the defendant. Article 46B.004. In Appellant’s case, his defense team filed motions and made mention of his quickly decompensating mental state early in the case. (CR1, 29). On this “suggestion that the defendant may be incompetent to stand trial,” the Court appointed Dr. Axelrad and Dr. Gollaher to evaluate Mr. Turner. Article 46B.021. The Court repeatedly made clear that, absent a showing of “gross change,” Appellant was only permitted to have one examination. As Appellant decompensated, his counsel filed and repeatedly re-urged the motion for a competency hearing. Article 46B.004(a). Texas two step Informal Inquiry14 There is no formula for what constitutes an informal inquiry. “The informal competence inquiry conducted by the trial court satisfied Chapter 46B. Although the trial court certainly could have conducted a more detailed inquiry, the inquiry it did conduct was not so deficient that it constituted an abuse of discretion.” Lawrence v. State, 169 S.W.3d 319, 325 (Tex. App.—Fort Worth 2005, pet. ref'd). 14 17 If the evidence of incompetency “is sufficient to raise a bona fide doubt in the judge's mind about the defendant's competency to stand trial,” the Court is required to conduct an informal inquiry. Montoya v. State, 291 S.W.3d 420, 424 (Tex. Crim. App. 2009). During the informal inquiry, “the court shall determine . . . whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” Article 46B.004. Appellant does not dispute that the Court conducted multiple informal inquiries. However, the standard under which they were conducted did not comport with the law. The evidence presented during the informal inquiries, and throughout the trial, required a competency hearing. Examination and Hearing If the Court, after the informal inquiry, “determines that evidence exists to support a finding of incompetency, the court shall order an examination under Subchapter B to determine whether the defendant is incompetent to stand trial in a criminal case.” Article 46B.005(a). Additionally, “the court shall hold a trial under Subchapter C before determining whether the defendant is incompetent to stand trial on the merits.” 46B.005(c)(emphasis added). Inaugural Inquiry On April 18, 2011, the first day of voir dire, Appellant’s counsel presented his Motion for a Contested Competency Hearing. (RR12, 4). Attached to the motion was an affidavit by Dr. Shawanda Anderson, a neuropsychologist that had visited with Mr. Turner. She was a defense expert; she was not appointed by the Court to complete a 18 competency evaluation and her affidavit was not offered as such. Although irrelevant, the Court noted that her affidavit did not meet the minimum requirements set forth in Article 46B. (RR12, 23). The Judge created his own standard for determining if a competency hearing was proper: The evaluation that you [defense counsel] have submitted to me will be a matter for this hearing to determine whether there is, in fact, grounds to go forward with a competency hearing based upon an appropriate evaluation; and that's why we're here and solely why we're here this morning. (RR12, 6). Later, the Court emphasized that he was looking at the doctor’s affidavit to see if it met a list of “minimum requirements” upon which to base his decision to have a competency hearing. (RR12, 10)15. Article 46B is very clear that a competency hearing is required if “evidence exists to support a finding of incompetency.” Article 46B.005(a). In determining whether evidence requires empaneling a separate jury to conduct a competency hearing, the trial court is to consider only the evidence tending to show incompetency, and not evidence showing competency, in order to find whether there is some evidence, a quantity more than none or a scintilla, that rationally could lead to a determination of incompetency. Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). 15 The Court does not state to which portion of 46B he is looking for the requirements. It could possibly be Article 46B.025 that lists items a formal report must include. Or, perhaps Article 46B.024 that lists some considerations when looking at competency. Regardless of the particulars, Dr. Anderson was not submitting a formal report and it is improper to limit a competency inquiry to a single factor. 19 It was improper for the Court to explicitly limit his informal inquiry to consideration of an affidavit that was not a formal competency exam. “A trial court abuses its discretion if it acts without reference to any guiding rules or principles, or if its decision is arbitrary or unreasonable.” Malone v. State, 163 S.W.3d 785, 793 (Tex. App.—Texarkana 2005, pet. ref'd). There is no legal basis for determining whether or not a competency hearing is appropriate solely on an affidavit’s success in meeting the technical requirements of a competency exam. An affidavit by defense counsel Tyrone Moncriffe was also attached to the motion. Defense counsel is permitted to provide “specific and illustrative” information regarding a defendant’s ability to communicate with counsel. Moore at 394. The Court decided which portions of counsel’s affidavit should be redacted, acknowledged that the affidavit was relevant to the issue of Mr. Turner’s ability to consult with his lawyers, and that it would be relevant at a competency hearing. (RR12, 9). However, the Court did not consider it when deciding whether or not to have a competency hearing. This was an erroneous analysis. If the affidavit is relevant to issues of competency, it should have been considered. Unfinished business On April 26, 2011, well into voir dire, counsel re-urged the Motion for a Contested Competency Hearing. At that time, the Judge noted that Appellant’s attitude “has been more intense the last six months” (RR12, 8). The Court again refused to conduct a competency hearing. Subsequently, counsel again filed an affidavit describing 20 the evidence that showed Mr. Turner was incompetent as described in 46B.003. After receiving this new evidence the Court issued an “Order for Competency Exam” that stated: The court hereby appoints Connie Almeida, a licensed mental health professional to conduct a competency exam as soon as possible and to report back to the Court on Mr. Turner's mental status. The exam shall focus on the requirements of 46(b) that the defendant be able to rationally assist his lawyers and the defense of the case. (CR3, 535)16. When the Court appointed Dr. Almeida for a subsequent examination based upon new information, obviously evidence existed to support a finding of incompetency. Under the statute, the existence of that evidence required the Order for the exam and a competency hearing. Iniquez v. State, 2012 WL 2742632 *2 (Tex. App.—Austin July 6, 2012, no. pet. h.)17. Third time’s the charm? Mr. Turner did not have a competency hearing. Instead, the Court invited Dr. Almeida to report back on May 20, 2011 for yet another informal inquiry. (RR51, ff). The Court believed enough evidence existed to appoint Dr. Almeida. No information she Presumably, the reference to “46(b)” is a typo. Although vague, the context indicates the Court meant Article 46B.003. 17 The Forth Worth Court of Appeals has indicated that the exam and hearing were sequential and not simultaneous. Smith v. State, 2012 WL 3600002 *5 (Tex. App.—Fort Worth Aug. 23, 2012). In Smith, Appellant’s attorney told the Court that Appellant was competent and did not request a jury trial on the issue of competency. Id. 16 21 provided suggested that any of that evidence upon which the Court based the decision to appoint her was false. The competency determination process has two steps: 1) an informal inquiry and, if warranted, 2) a competency examination and trial [hearing]. The Court completed step 1 and only half of step 2. Article 46B.005 is not discretionary. The “court shall hold a trial under Subchapter C before determining whether the defendant is incompetent to stand trial on the merits.” Clearly, the Court thought the evidence of Mr. Turner’s incompetency was compelling enough to complete step 1 (informal inquiry) and a part of step 2 (appointment of an expert and a competency hearing). It is not clear why the Court stopped short of completing the procedure dictated by the statute. But, it is clear that refusing to follow the law denied Mr. Turner due process. “More than none” When examining the evidence of incompetency, “it must be viewed in the light most favorable to the party with the burden of securing the finding, disregarding contrary evidence and inferences . . . the question for the trial court is whether with respect to incompetency there is ‘any’ evidence or ‘no’ evidence.” Sisco v. State, 599 S.W.2d 607, 612-13 (Tex. Crim. App. 1980)18. It is a defendant’s burden to prove he is incompetent by a preponderance of the evidence. Article 46B.003(b). 18 Sisco refers to Article 46.02 Section 2 of the Texas Code of Criminal Procedure, the applicable statute at the time. The current 46B is substantively the same. Article 46.02 distinguished between competency challenges raised pretrial and during trial. 22 “Evidence is usually sufficient to create a bona fide doubt if it shows ‘recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant.’” McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003) quoting Alcott v. State, 51 S.W.3d 596, 602 (Tex. Crim. App. 2001). The Court acknowledged that “you and I might think it [behavior] bizarre, but it does not raise to the level of bizarreness as cases tend to indicate.” (RR51, 38). A competency hearing is required if some evidence is presented to support a finding of incompetency to stand trial. “‘Some evidence’ means a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetency.” Sisco at 613. Mr. Turner met his burden and due process dictated that he receive a competency hearing. No time like the present Each time the Court made an inquiry and/or counsel re-urged Appellant’s motion, the Court had more than a scintilla of evidence of Mr. Turner’s incompetence. With each attempt to preserve Appellant’s right to not be tried while he was incompetent, the evidence mounted. The statute addresses a defendant’s present competency. Montoya v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). The fact that Mr. Turner was previously found to be competent did not relieve the trial court’s duty to inquire further. Competence may fluctuate, and “[e]ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render 23 the accused unable to meet the standards of competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 181 (1975); Ex parte Long, 558 S.W.2d 894, 895-896 (Tex. Crim. App. 1977). The Court’s repeated insistence that Appellant was only permitted to have one competency exam directly contradicts the idea of changing competency. The Court itself noted that the circumstances had changed in the six months prior to defense counsel’s request. The facts of life Over the course of the inquiries, some examples of the evidence the Court was presented with included19:  On his Pretrial Intervention Interview Report Mr. Turner revealed that he had thought about hurting himself or someone else.  Court appointed expert Dr. David Axelrad believed that Appellant “may have a mental illness and the diagnosis may be paranoid disorder.” (CR1, 183)  Dr. Axelrad found noted impairment in attitude, mood and cognition. (CR1, 185)  Per Dr. Axelrad, Appellant had a mild deficit in his ability to disclose “to counsel pertinent facts, events, and states of mind.” (CR1, 185)  Per Dr. Axelrad, Appellant had a mild-to-moderately deficit in his ability to “engage in a reasoned choice of legal strategies and options.” (CR1, 192)  Mr. Turner, upon arrest, was placed “in a padded cell on five-minute watch.” (RR51, 9) 19 Counsel was relaying information to the Court from the moment they began to realize Mr. Turner was incompetent. This was done in open court, in ex parte hearings, and in sealed exhibits. (RR65, 17). 24  Mr. Turner believed that his defense team was discussing his case with other inmates. (RR4, 5)  Dr. Almeida couldn’t rule out that Mr. Turner was paranoid. (RR51, 20)  Mr. Turner believed one of his attorneys was a member of a secret society. (RR51, 16)  Mr. Turner’s first attorney had to withdraw because of an inability to communicate. (RR5, 4)  When presented with duplicates of a signed letter he had submitted to the Court, he told the Court the copy was not the same thing because it was not signed. Even given the opportunity to review them, he could not trust it was the same letter and fixated on where the originals had gone. (RR10, 5)  When Mr. Turner was addressing the Court directly with complaints about his defense team, his attorney Pat McCann requested the Court instruct Mr. Turner not to go into attorney-client communication. (RR4, 6). The Judge did so with nothing but a “Yes, sir” as an indicator that Mr. Turner understood.  Mr. Turner believed that his defense team was coercing his children. (RR51, 16)  Mr. Turner asked for clarification of the process while testifying.  Mr. Turner would not discuss any jury panel members with counsel and it impacted voir dire. (RR51, 31)20  Mr. Turner refused to meet with Dr. Connie Almeida on May 9, 2011. (RR51, 7)  Mr. Turner refused to meet with Dr. Connie Almeida on May 10, 2011. (RR51, 8) The prosecutor explained that the reason for Mr. Turner’s suspicion is because “He’s afraid they’re not going to help him get away with killing two women, and that’s basically it.” (RR51, 34). 20 25  Mr. Turner refused to meet with Dr. Connie Almeida on May 12, 2011. (RR51, 7)  Mr. Turner met with Dr. Almeida on May 17th and refused to take the exam and remained standing for the entire 30 minute conversation. (RR51, 9)  Dr. Almeida could not “make a recommendation around competency.” (RR51, 15)  Mr. Turner responded to counsel with “Don’t use those devil words with me.” (RR65, 11)  Mr. Turner referred to counsel as the spawn of Satan. (RR65, 12)  Mr. Turner asked counsel if he was a part of a secret society. (RR65, 13)  Mr. Turner asked counsel if he was putting things in his coffee. (RR65, 13)  Mr. Turner continually referred counsel to seemingly irrelevant biblical passages. (RR65, 13)  When asked what he would testify about, Mr. Turner responded “You’ll see what I have to say when I say it.” (RR65, 13)  When counsel attempted to engage Mr. Turner during voir dire, he would say to counsel “Why do you care? You’re just here to get me killed.” (RR65, 13)  Counsel testified that Mr. Turner “through delusion or paranoia about what was going on, he had lost the ability assist us.” (RR65, 12)  Mr. Turner did not trust his habeas counsel because their letterhead indicated they worked for the State.  The trial court ignored Mr. Turner’s decision not to sign a release and ordered his trial counsel to turn over Mr. Turner’s file despite Mr. Turner’s wishes.  Mr. Turner believed, and he told his lawyers that, they were deliberately tainting his trial. (RR65, 14) 26  Mr. Turner called his attorney a “Toby.” (RR65, 14)  Per Dr. Axelrad, Appellant had a mild deficit in his “capacity to engage with counsel.” (CR1, 185)  Dr. Axelrad’s report stated: “Dr. Silverman does note that the Defendant is exhibiting some paranoid ideation, and he does appear to be delusional.” Dr. Silverman was Appellant’s attending psychiatrist. (CR1, 186) The U.S. Supreme Court has stated that there is no formula when examining the issue of competency: The import of our decision in Pate v. Robinson is that evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts. Drope at 180. However, when a Court determines whether or not to conduct a competency hearing it shall only consider “the evidence tending to show incompetency, and not evidence showing competency.” Reed v. State, 112 S.W.3d 706, 710 (Tex. App.— Houston [14th Dist.] 2003, pet. ref'd). Here, the Court did not abide by that rule. One example of a faulty analysis was when he informed counsel that, when Counsel was talking about suspicion during the May 18th motion hearing, Mr. Turner “had a definite reaction . . . so he’s paying attention. He knows what’s going on.” (RR51, 38). 27 The Fifth Circuit has held that a defendant’s demeanor is not dispositive. Bouchillon v. Collins, 907 F.2d 589, 593 (5th Cir. 1990). acknowledged the complexity of observing incompetency. That Court has also “The nature of Lokos' condition was such that he was able to understand questions and respond to them. One need not be catatonic, raving or frothing, to be unable to understand the nature of the charges against him and to be unable to relate realistically to the problems of his defense. Lokos v. Capps, 625 F.2d 1258, 1267 (5th Cir. 1980). In the thick of it At the same May 18th hearing where the Court considered Dr. Anderson’s affidavit only, defense counsel submitted an affidavit by counsel that the Court ruled “would be part of a competency hearing.” (RR12, 9). Counsel’s affidavit is a critical piece of evidence when examining a defendant’s competency: Generally, the close interaction presumed by the lawyer/client relationship makes trial counsel the best source of information about a defendant's competency. “Because legal competency is primarily a function of defendant's role in assisting counsel in conducting the defense, the defendant's attorney is in the best position to determine whether the defendant's competency is suspect.” Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir.1996). Aldridge v. Thaler, 2010 WL 1050335 *6 (S.D. Tex. Mar. 17, 2010). Mr. Turner was not “catatonic, raving or frothing.” He was deeply paranoid and as trial continued, he became more out of touch with reality. His attorneys continued to re-urge their motion because they were witnessing his descent. They could, and did, say with certainty that Mr. Turner could not consult with them with a reasonable degree of 28 rational understanding. He did not have a rational as well as a factual understanding of the proceedings. If Article 46B had been followed and the evidence evaluated as the law required, Mr. Turner would have received a competency hearing. Conclusion If there is “any indication that a defendant may be incompetent” due process requires a competency hearing. Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004). In Appellant’s case, there was much more than an indication of incompetency and he received much less than due process required. Mr. Turner did not receive a fair trial with the protections that a citizen is due. The fundamental unfairness of the proceeding dictates that this case be remanded to the trial court for a new trial on culpability and punishment. POINT OF ERROR NINE THIS COURT SHOULD ABATE THE APPEAL AND REMAND TO THE TRIAL COURT FOR A DETERMINATION OF APPELLANT’S COMPETENCY DURING TRIAL In cases where defendants were denied effective assistance of counsel at their competency hearing, where the competency hearing was improper for some reason, or where a trial court erroneously failed to hold a competency hearing, we have held that the proper relief is a retrospective competency hearing. Ex parte Lawton, 2006 WL 3692632 (Tex. Crim. App. Dec. 13, 2006). Mr. Turner was denied a competency hearing contrary to what the law requires. This appeal should be abated and remanded for the trial court to conduct a retrospective determination under Article 46B.005. Huff v. State, 807 S.W.2d 325, 326 (Tex. Crim. 29 App. 1991); Durgan v. State, 259 S.W.3d 219, 228 (Tex. App.—Beaumont 2008, no pet.)21 In Durgan, the case was remanded three and a half years after her adjudication. Id. Lawton’s trial took place more than six years before the Court remanded it for a retroactive review. In Ex parte Harris, this Court remanded the case back to the trial court for a retrospective competency hearing more than six years after the petitioner’s trial. Ex parte Harris, 592 S.W.2d 624, 625 (Tex. Crim. App. 1980). This Court instructed the trial court that if such a hearing was not possible, findings to that effect should be entered. The trial court complied and after conducting a hearing, found that Harris had been competent at the time of trial. This Court denied relief. Ex parte Harris, 618 S.W.2d 369 (Tex. Crim. App. 1981). It has not been even eighteen months since Mr. Turner’s conviction and death sentence. 21 More than two years after Appellant’s probation was revoked, this Court sitting en banc held: In the instant case, Appellant was not given a § 2(b) competency hearing to which he was entitled. Therefore, the judgment of the Court of Appeals is vacated. This case is remanded to that court which shall abate the appeal and remand the case to the trial court to determine Appellant's competency at the time of sentencing. Casey at 949. 30 The evidence is not stagnant. Additionally, there were proceedings subsequent to the trial during which Mr. Turner testified that would provide additional evidence of Mr. Turner’s state of mind within months of his sentence. A competency hearing will confirm what the record shows: that Mr. Turner was, in fact, incompetent at the time of his trial and that he was denied due process, due course of law, the effective assistance of counsel, his right to confrontation, and his Fifth Amendment right against self-incrimination. POINT OF ERROR TEN THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT, TO BE TRIED AND CONVICTED, IN VIOLATION OF HIS CONSTITUIONAL RIGHT TO DUE PROCESS POINT OF ERROR ELEVEN THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT TO BE SENTENCED TO DEATH IN VIOLATION OF HIS CONSTITUIONAL RIGHT TO DUE PROCESS POINT OF ERROR TWELVE THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT, TO BE TRIED WITHOUT THE ABILITY TO CONFER WITH HIS ATTORNEYS, THEREBY DENYING APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL POINT OF ERROR THIRTEEN THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING APPELLANT, WHO WAS INCOMPETENT, TO BE TRIED WITHOUT THE ABILITY TO CONFER WITH HIS ATTORNEYS, THEREBY DENYING APPELLANT HIS RIGHT TO CONFRONTATION 31 POINT OF ERROR FOURTEEN THE TRIAL COURT REVERSIBLY ERRED BY LETTING APPELLANT, WHO WAS INCOMPETENT, WAIVE HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION Appellant’s above points of error are based on the same set of facts. As a result, the points will be briefed together in an attempt to avoid unnecessary repetition. Appellant submits this summary of evidence as a preface pertinent to all points of error, and sets out more particular details when necessary for an individual point. Mr. Turner’s basis for relief has the rare status of being based upon a legal tenet that is, and always has been, agreed upon. It violates an individual’s Constitutional right to due process when they are tried while incompetent22. Bishop v. United States, 350 U.S. 961 (1956); Ex parte Hagans, 558 S.W.2d 457 (Tex. Crim. App.1977); Cooper v. Oklahoma 517 U.S. 348 (1996). It also violates a person’s right to due course of law under the Texas Constitution. Ex parte Lewis, 587 S.W.2d 697, 700 (Tex. Crim. App. 1979). The deep roots and fundamental character of the defendant's right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection. Cooper at 368. The U.S. Supreme Court has pointed out that the “prohibition against trying the incompetent defendant was well established by the time Hale and Blackstone wrote their famous commentaries.” Cooper v. Oklahoma, 517 U.S. 348, 356 (1996). 22 32 In Riggins v. Nevada, 504 U.S. 127 (1992), Justice Kennedy wrote an opinion concurring with the Court’s judgment reversing and remanding a case in which a defendant was involuntarily medicated. He provided a detailed description of the constitutional protections assaulted when an incompetent individual is put to trial: Competency to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so. Id. at 140. A trial with an incompetent defendant is no trial at all23. I need a lawyer If a defendant cannot consult with his lawyer with “a reasonable degree of rational understanding,” he is incompetent. Article 46B.003(a)(1) It is not enough that Mr. Turner was able to converse with his counsel—he must have had the ability “to communicate in a meaningful way with his attorneys.” Lawrence v. State, 169 S.W.3d 319, 325 (Tex. App.—Fort Worth 2005, pet. ref'd). “A defendant's competency strongly comes into question if mental illness impairs his ability to understand, participate in, or ratify his attorney's decisions.” Aldridge at *7. In Aldridge, the Federal District Court This Court has noted that sentencing an incompetent defendant does not further “specified objectives of the Penal Code such as insuring the public safety by ‘the deterrent influence’ of the sentence, by the rehabilitation of the convicted person, and by the prevention of recurrence of the criminal behavior.” Texas Penal Code Section 1.02; Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996). 23 33 emphasized that a capital case raises particularly important issues regarding meaningful attorney-client communication: In a capital case, defense attorneys have the special obligation to marshal evidence that would militate against the State's ability to carry out the ultimate punishment. Trial counsel often will rely on the capital defendant to provide viable avenues for a mitigation investigation. A capital defendant's mental illness—while itself possibly providing grounds for imposing a sentence less than death—may also hinder that defendant's ability to consult with counsel in a manner that provides sufficient insight into defense strategy. The seriousness of the charges against Aldridge must factor into his ability to understand his legal plight and his ability to assist his attorneys in crafting a meaningful defense. Id. Through no fault of defense counsel, Mr. Turner was left without a lawyer because his incompetency made it impossible for him to engage with one. Just as the scenario where an attorney has shirked his duty to the point of ineffectiveness, Mr. Turner’s incompetency severely impeded defense counsel’s ability to advocate for him. Before Mr. Turner took the stand, counsel approached the bench and informed the Court that he could not ethically direct his client in a question and answer format. (RR56, 33). The Court told counsel to ask an open ended question and he would rule on the prosecutor’s objections. The objections began the moment counsel attempted to elicit any information about the offense. (RR56, 37). Those objections continued and counsel once again explained to the Court that he cannot question Mr. Turner in a question and answer format. 34 The prosecutor interjected: “Let me help him out. He can’t do it because he knows it’s a lie. He cannot support perjury” and the prosecutor helpfully suggested counsel pass Appellant instead of continuing with the examination. (RR56, 41). THE COURT: Can you ask him questions that will not lead to that type of response but yet present for this jury a semblance of his defense in this case? MR. MCCANN: I can attempt to, your Honor. MR. FELCMAN: You're not going to be able to. THE COURT: Well, I know I've got to give him every leeway to try to elicit what Mr. Turner would like to say as long as it's within the rules, within the law, and is bound by your ethical obligations. If you cannot do that without eliciting that type of testimony, then we'll stop. MR. FELCMAN: Pass him. MR. MCCANN: Let me try. (RR56, 42). The state’s objections were continual. The prosecutor also moved that Mr. Turner be held in contempt. (RR56, 45-46). Defense counsel was put in the untenable position of finding a way to direct a delusional client that he could not ethically question directly and denying Mr. Turner his right to testify because the judge has said if he can’t “we’ll stop.” On re-direct, it was impossible to address the issues that the prosecutor questioned Mr. Turner about in a legal and ethical manner. Ineffective assistance of counsel claims are analyzed using a “totality of the representation standard.” Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004). 35 Incompetency is examined similarly. “‘Competency is contextual.’” Aldridge citing Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996). All “evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient.” Drope at 180 (1975); Schoor v. State, 279 S.W.3d 844, 846 (Tex. App.—Amarillo 2009, pet. ref'd)(“We review the totality of the facts in determining whether the court abused its discretion in deciding not to hold a competency inquiry.”) When Dr. Axelrad completed his examination in 2010, he wrote: At the present time, the Defendant does appear to have mild paranoid functioning, which was exhibited during the course of my interview. This was also observed by the former attending psychiatrist of the Fort Bend County Infirmary, Dr. Seth Silverman. Because of the Defendant's unwillingness to discuss with me the circumstances surrounding the commission of the alleged offense in this matter, I am unable to address, at this time, as to whether the Defendant has a paranoid disorder. In the event he has a paranoid disorder, this may be contributing to the problems he is experiencing with his attorney. In the event that the Defendant wishes to provide further information to me concerning the nature of his marriage on or around the time of the commission of the alleged offense, I will provide an addendum to this report, more fully addressing whether the Defendant is currently experiencing a paranoid disorder. (CR1, 192)(emphasis added). Mr. Turner had “mild paranoid functioning.” He possibly had “paranoid disorder.” Such a disorder could be the cause of his inability to confer with his attorneys. 36 However, the doctor could not make the determination of the extent of Mr. Turner’s paranoia because Mr. Turner was too paranoid to share information with the doctor. Mr. Turner was unable to rationally communicate with his counsel to the point that he was not only unhelpful, but his incompetency was a hindrance. Defense counsel was completely hamstrung. Because of Mr. Turner’s incompetency, they were unable to confer with him, explain things to him, or get information from him that was necessary for his defense. If a Court were to order a defendant to cease communicating with his attorney, it would undoubtedly be a deprivation of his right to counsel. If the Court made a defendant believe that his attorneys were working with the State and were part of a secret society, there would be no doubt that his right to a fair trial had gone out the window. Those things happened in Mr. Turner’s trial, but instead of an order from the bench, it was his intense, delusional paranoia that rendered him incompetent and denied him his right to counsel. Subject to interpretation A defendant’s right to confront and cross-examine witnesses is so fundamental that it applies to out of court statements as well as in court statements. Crawford v. Washington, 541 U.S. 36 (2004). Confrontation requires physical presence and competency. This Court explained: Physical presence and competency, essential requisites of confrontation, are personal to the accused and without affirmative action or assent by the accused those imperatives may not be disregarded or ignored by the courts. 37 But even presence and competency do not suffice to provide confrontation where the accused does not understand the language of the forum. Baltierra v. State, 586 S.W.2d 553, 556-57 (Tex. Crim. App. 1979)(footnotes omitted). In Baltierra, the Court was referring to actual language—the issue in that case was Appellant’s providing an interpreter. However, requiring an interpreter is analogous to competency. Garcia v. State, 149 S.W.3d 135 (Tex. Crim. App. 2004)(“competency and language proficiency are similar in several respects.”). In Garcia, this Court, with a unanimous judgment reversing the trial court was even more clear: “The right to be present includes the right to understand the testimony of the witnesses.” Id. at 140. Judge Keller, in her concurring opinion noted “incompetency to stand trial cannot be waived because an incompetent person cannot, by definition, intelligently waive his rights.” Id. at 146. Every witness that took the stand was subsumed into Mr. Turner’s delusions and paranoia. He could not assist his attorneys in cross-examining them, because his understanding of what they were saying did not comport with reality. And he believed that his lawyers were working against him, so he could not share information with them. Mr. Turner was not speaking the same language as anyone else in the courtroom. Waive your 5th Amendment right goodbye The proposition that a criminal defendant cannot be compelled to take the witness stand at the guilt-innocence stage and give evidence against himself is so well understood that it requires no citation of authority to support it. It is, of course, a waivable right if done knowingly, voluntarily and intelligently. 38 Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim. App. 1981). As Judge Keller noted in Garcia, an incompetent individual cannot intelligently waive his rights. An individual’s Fifth Amendment privilege is an “essential mainstay” of the criminal justice system. Malloy v. Hogan, 378 U.S. 1, 7 (1964). When addressing the waiver of a constitutional right in the context of the right to counsel, the U.S. Supreme Court explains that the “determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The Court also points out that the presumption is against waiver and a waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Id. at 632. A waiver cannot be presumed from a silent record. Boykin v. Alabama, 395 U.S. 238, 243 (1969)24. In Boykin, the Court reversed the case because it found that there was no “affirmative showing” on the record indicating that Petitioner’s guilty plea was intelligent and voluntary and that he had waived his rights, including his right against self-incrimination. Counsel informed the Court that Mr. Turner wanted to testify and that the decision was against advice. The Court informed Mr. Turner of his right to testify and the fact that his attorney must “adhere to your desires as long as it does not put counsel in a Many of the cases discussing a defendant’s Fifth Amendment right deal with guilty pleas in which that right is waived. The analysis is the same in the context of a defendant testifying. 24 39 position of violating any laws or rules of the court.” (RR56, 28). Mr. Turner replied in the affirmative when the Court asked if he desired to testify. The Court then proceeded to attempt to explain the rules that apply to testimony, but Mr. Turner had a hard time understanding them. The Court assured Mr. Turner that he would also be able to testify in the punishment phase. (RR56, 31). However, the Court never informed him of his right to remain silent. He repeatedly gave him instructions on what types of testimony would be allowed. Mr. Turner's response indicated he did not feel he had any other choice because his lawyers weren’t helping him and he had “tried to get rid of” them. (RR56, 31). Mr. Turner’s incompetency prevented him from intelligently and knowingly waiving his 5th Amendment right. “The question is not whether the petitioner made a knowing decision to testify, but why.” Harrison v. United States, 392 U.S. 219, 223 (1968). In Harrison, the petitioner testified at his trial to rebut an illegally admitted statement. At his retrial, the prosecutor used petitioner’s testimony from the first trial. The Court reversed the conviction because the illegal statement was the impetus for him to testify. Id. at 225. Mr. Turner believed he had no choice but to testify because his lawyers were helping the state convict and kill him, they were altering evidence, and one of his lawyers had already told the jury that he had committed the murder. He testified because he was out of touch with reality. He testified because he was incompetent. 40 Mr. Turner was incapable of intelligently and knowingly waiving his right against self-incrimination. The violation of this constitutional right requires that this case be remanded to the trial court for a new culpability and punishment trial. POINT OF ERROR FIFTEEN THE TRIAL COURT REVERSIBLY ERRED BY CONDUCTING A MOTION FOR NEW TRIAL HEARING WITHOUT THE PRESENCE OF THE APPELLANT IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE 33.03 POINT OF ERROR SIXTEEN THE TRIAL COURT REVERSIBLY ERRED BY CONDUCTING A MOTION FOR NEW TRIAL HEARING WITHOUT THE PRESENCE OF THE APPELLANT IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS POINT OF ERROR SEVENTEEN THE TRIAL COURT REVERSIBLY ERRED BY CONDUCTING A MOTION FOR NEW TRIAL HEARING WITHOUT THE PRESENCE OF THE APPELLANT IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 1.051(a) Appellant’s above points of error are based on the same set of facts. As a result, the points will be briefed together in an attempt to avoid unnecessary repetition. Appellant submits this summary of evidence as a preface pertinent to all points of error, and sets out more particular details when necessary for an individual point. On August 8, 2011 the Court held a hearing on Appellant’s timely filed Motion for New Trial. Before any testimony or an opening statement was given, counsel objected to Mr. Turner’s absence under Texas Code of Criminal Procedure Article 33.03. (RR65, 4). Article 33.03 states: 41 In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. Provided, however, that the presence of the defendant shall not be required at the hearing on the motion for new trial in any misdemeanor case. Defendant’s presence required The right of a defendant to be present at a Motion for New Trial is firmly rooted in Texas law. This Court, interpreting a precursor to Article 33.03, held that a defendant who was absent from a hearing and did not waive his right to be present was entitled to relief.25 His “presence is requisite under such circumstances.” Phillips v. State, 288 S.W.2d 775, 776 (Tex. Crim. App. 1956).26 Mr. Turner had a right to be present and exercise his constitutional right to confrontation, both of which are fundamental to a fair trial. Coons v. State, 758 S.W.2d 330, 339 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). The prior statute, Article 580 of the Code of Criminal Procedure “did not include the provision authorizing the trial to proceed in all felonies and misdemeanors punishable by jail where the defendant voluntarily absents himself after pleading, nor did it provide that a defendant is not required to be present at the hearing on the motion for new trial in any misdemeanor case.” Mares v. State, 571 S.W.2d 303, 305 footnote 1(Tex. Crim. App. 1978). 25 In Phillips, even the prosecutor recognized the importance of the defendant’s presence by agreeing to the asserted error. 26 42 Even if a defendant is not actually confronting witnesses or evidence against him, he has a due process right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934). It is a requirement that “his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). If a defendant’s absence would thwart a fair and just hearing, it is a due process violation. Green v. Johnson, 116 F.3d 1115, 1124 (5th Cir. 1997). Reasonably substantial relationship This Court has adopted the “reasonably substantial relationship” test when evaluating a defendant’s absence at a critical stage of her trial.27 Routier v. State, 112 S.W.3d 554, 576 (Tex.Crim.App.2003). To be error “the defendant's presence must bear a reasonably substantial relationship to the opportunity to defend.” Adanandus at 219. “If the defendant's presence would not have furthered the defense, his or her presence does not bear a reasonably substantial relationship to the opportunity to defend.” Slay v. State 2005 WL 1634952 (Tex. App.—Dallas July 13, 2005, no pet.). In Bledsoe v. State, Appellant was absent for voir dire in her case. The El Paso Court of Appeals found that a showing of actual harm due to the absence was not necessary. “The reasonably substantial relationship test seeks to determine the effect of the defendant's absence on the advancement of his defense, as opposed to Rule 81(b)(2) which seeks to determine the effect of the defendant's absence on the outcome of the trial or punishment proceeding. In light of the distinct focus of the two tests, we hold that Rule 81(b)(2) does not supplant the reasonably substantial relationship test, but rather should be applied in addition thereto.” Adanandus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993). 27 43 We do not agree that the “reasonably substantial relationship” requires a showing of actual harm particularly since the test is stated in terms of the opportunity to defend. Moreover, it would be nearly impossible for a defendant to demonstrate actual harm arising from her absence during voir dire and jury selection without engaging in a reenactment of the entire proceeding. Consequently, we will not limit our harm analysis under the “reasonably substantial relationship” test by requiring Appellant to show actual harm. Bledsoe v. State, 936 S.W.2d 350, 352 (Tex. App.—El Paso 1996, no pet.)(emphasis in original). Instant replay A reenactment is not always impossible. This Court found there was not error when Appellant was feeling ill and voluntarily remained in his cell during a day of voir dire. Adanandus v. State, 866 S.W.2d 210, 217 (Tex. Crim. App. 1993). The next day the State expressed concern that Appellant’s rights under Article 33.03 had been violated. The trial court’s solution was a do over. After considerable debate, the court decided to recall the eight venirepersons for re-examination in appellant's presence. Subsequently, a second voir dire was conducted on the eight venirepersons. Although the questions asked at the second voir dire were generally in confirmation of the testimony given at the first voir dire and were brief, both parties were given the opportunity to fully voir dire each of the eight venirepersons in appellant's presence. The end result was the same as before—the same three venirepersons were challenged for cause by appellant and the others were accepted by both sides as potentials. At the end of all of the voir dire, the State exercised peremptory challenges against the five remaining of the eight venirepersons, so that none of the persons that had been questioned in appellant's absence actually served . . . Appellant's absence for part of the voir dire examination was essentially “undone” due to re-examination in appellant's presence of the eight venirepersons that had been voir dired in his absence. 44 Id. at 217. In the analysis to determine if there is a “reasonably substantial relationship,” courts look at the potential assistance a defendant could have provided during the proceeding. Appellant must have an opportunity to assist in his defense. Adanandus at 219. (emphasis added). Appellant’s assistance In Henderson, Appellant used a Motion for New Trial to attack her guilty plea as involuntary because of coercion by law enforcement. Her absence at the hearing on the motion was error. Henderson v. State, 127 S.W.2d 902, 903 (Tex. Crim. App. 1939). The Court did not discuss harm or even potential justifications for the holding. One Appellate Court interpreted the Henderson holding as correct because the harm was obvious, “[s]he was prevented from presenting her testimony in support of her allegation that her plea of guilty was coerced.” West v. State, 752 S.W.2d 593, 597 (Tex. App.—Tyler 1987, pet. ref'd). It is almost certain that Mr. Turner would have exercised his right to testify given that he did so during the guilt-innocence phase of his trial and subsequently testified in a hearing regarding right of possession of his legal file. There was testimony that he likely would have wanted to respond to. For example, he probably would have wanted to address his trial counsel’s testimony that Mr. Turner had said to him “Do not use those devil words with me” (RR65, 11). 45 Defendant’s perspective essential Mr. Turner, if competent as the Court had determined, could have assisted counsel during the hearing. The arguments made by counsel were primarily factual. 28 “[T]he defendant has unique knowledge which is important at all stages of the trial . . . ” Sumrell v. State, 326 S.W.3d 621, 625 (Tex. App.—Dallas 2009, pet. dism’d). Courts have provided examples of ways in which a defendant may assist counsel in proceedings. While counsel can expose some biases by asking pertinent questions, others may not be exposed without Appellant's assistance in observing the panel. For example, one of the veniremembers indicated during the prosecutor's voir dire that she knew Appellant. She stated that she was not friends with Appellant, but simply “knew of” her from high school, and that there was nothing about the relationship that would cause her to be biased either for or against Appellant. Here, counsel was required to decide whether or not to further question the potential juror about this relationship and whether to exercise a peremptory challenge without any input from Appellant regarding the prior relationship. Third, a defendant may assist counsel during voir dire by watching the reactions of the veniremembers to counsel for both parties. When an attorney is engaged in questioning one member of the panel, (s)he may be unable to observe or measure the reactions of other members. Due to her absence, Appellant was unable to provide this assistance to her counsel. Finally, Appellant's absence deprived her of the opportunity to not only observe voir dire, but to actually participate in any aspect of jury selection. Bledsoe at 352. Discussing the usefulness of Petitioner’s testimony in a hearing on his Motion for New Trial, the Court pointed out that “the grounds raised by petitioner's attorney were legal rather than factual and petitioner's testimony was not relevant to their disposition.” Espinoza v. Thaler, 2011 WL 7473400 (S.D. Tex. Nov. 17, 2011). 28 46 There were multiple issues presented in Mr. Turner’s Motion for New Trial that were related to jurors. One juror was not a resident of Fort Bend County, but rather a resident of Harris County. He could have had input on this issue and how best to present it to the Court if he had been present. The defendant “may also be a member of the community in which he will be tried and might be sensitive to particular local prejudices his lawyer does not know about.” Sumrell at 625. Because the issues addressed in the hearing were factual, Mr. Turner’s perspective was even more likely to be helpful. Counsel also presented a Batson issue. Just as in the cases discussing a defendant’s potential assistance during voir dire, Mr. Turner was able to observe jurors in a unique way. He experienced their reaction to him much differently than counsel could. He should have had the opportunity to contribute to the questioning and argument at the Motion for New Trial hearing. An issue surrounding victims’ rights protesters was also presented at the hearing on the Motion for New Trial. Pictures of the protesters were put into the record. Mr. Turner should have been present to provide any information that could have been helpful. He may have recognized someone or had information regarding which case in particular they were protesting about. Or someone may have said something to him about the protest indicating that the community was aware of it. Mr. Turner’s input would have made appellate counsel more effective. He has a constitutional right to effective assistance of appellate counsel on his “first appeal as of right.” Evitts v. Lucey, 469 U.S. 387, 397 (1985). 47 During his trial, because of his incompetency, Mr. Turner did not meaningfully participate in voir dire. When counsel attempted to engage him, he would say things like “Why do you care? You’re just here to get me killed.” (RR65, 13). Refusing to bring Mr. Turner to the Motion for New Trial hearing denied Mr. Turner his right to be represented by counsel. A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding. Texas Code of Criminal Procedure Article 1.051(a). Although Mr. Turner was not cooperative during trial, his perspective may have changed post-conviction. A change could be possible for any number of reasons—the realization of the situation that he is in or receiving medication in prison. As the Dallas Court of Appeals explained: He [a defendant] may also have knowledge of facts about himself or the alleged crime which may not have seemed relevant to him in the tranquility of his lawyer's office, and thus may not have been disclosed, but which may become important as the individual prejudices or inclinations of the jurors are revealed. Sumrell at 625. At the time of the hearing, Mr. Turner had already been moved to the Polunsky Unit in Livingston, Texas and was not given any time to confer with counsel. A capital defendant has a right to waive his direct appeal. If that was Mr. Turner’s preference, he was unable to inform the Court of that fact. 48 Every critical stage There was no justification for denying Mr. Turner his rights. There was no logistical reason for the refusal to have him in Court. He was brought back to court for a subsequent proceeding regarding his refusal to sign a release to enable his writ counsel to receive a copy of his trial file. (RR66, 14). Mr. Turner would not sign the release because he did not trust the habeas attorneys because they worked for the government. There was litigation over the privilege issue in an attempt to get trial counsel to give Mr. Turner’s file to habeas counsel. At the first hearing on the issue, Mr. Turner was not present. Counsel objected to Mr. Turner’s absence and the trial court noted the objection and explained: It's the Court's decision not to have Mr. Turner here because this matter seems to go to a law question rather than a fact question, and it's noted that Mr. Turner has not granted his consent to turn over the file and admitted by both sides, and I can go forward without his having to be here with that knowledge. (RR66, 9)29. Shortly after the hearing began, the Judge stated: Counsel, I’m going to stop you right there. It’s very obvious to me that we’re going to have to have Mr. Turner here. I don’t know how to go forward without having him here to testify why he has refused to give consent and whether that refusal is a valid refusal and if he even understands what the purpose of writ counsel is. 29 This acknowledgement by the Court comports with case law—when there is a fact issue at play, the Defendant should be there. Issues in the Motion for New Trial hearing were factual. Here, the Court stopped the proceeding until Appellant could be transported from TDCJ. 49 My initial review indicated to me that it wouldn’t be appropriate because it was strictly a legal issue, but you’ve sufficiently presented to me that there’s a factual component to this. I don’t know if there’s ever been a court in this state that’s ever had to take this issue up. If I’m going to be the first one, I’m going to make a full record. (RR66, 14)(emphasis added). At that hearing, Mr. Turner took the stand without objection or hesitation. The Court’s explanation of why Mr. Turner was required to be at the privilege hearing is the same explanation of why he had a right to be at the Motion for New Trial hearing. Mr. Turner did not waive that right and it is improper to presume that he did: Waivable rights, on the other hand, do not vanish so easily. Although a litigant might give them up and, indeed, has a right to do so, he is never deemed to have done so in fact unless he says so plainly, freely, and intelligently, sometimes in writing and always on the record. Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992). He need make no request at trial for the implementation of such rights, as the judge has an independent duty to implement them absent an effective waiver by him. Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993). In Mr. Turner’s case, he was not even given the opportunity to make a choice of whether or not to waive his rights. According to the Court, Mr. Turner was competent. If that ruling was correct, Mr. Turner should have been informed of his right to be present and given the opportunity to invoke or waive that right. The denial of Mr. Turner’s statutory and constitutional rights to be present at a critical stage of his trial or even given the information or opportunity to waive that right, requires a reversal of his conviction and a remand to the trial court for a new trial. 50 Alternatively, Appellant requests that the case be remanded to the trial court to conduct a hearing on the Motion for New Trial during which Mr. Turner is present or given the right to waive his presence. POINT OF ERROR EIGHTEEN THE TRIAL COURT REVERSIBLY ERRED WHEN IT FAILED TO ALLOW APPELLANT TO REPRESENT HIMSELF IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO WAIVE COUNSEL POINT OF ERROR NINETEEN THE TRIAL COURT REVERSIBLY ERRED WHEN IT FAILED TO GIVE APPELLANT FARETTA WARNINGS WHEN HE DECLARED HE WANTED TO REPRESENT HIMSELF POINT OF ERROR TWENTY THE TRIAL COURT REVERSIBLY ERRED WHEN IT FAILED TO GIVE APPELLANT FARETTA WARNINGS WHEN HE DECLARED HE WANTED TO REPRESENT HIMSELF IN VIOLATION OF TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 1.051(g) Appellant’s points of error are based on the same set of facts. As a result, the points will be briefed together in an attempt to avoid unnecessary repetition. Appellant submits this summary of evidence as a preface pertinent to all points of error, and sets out more particular details when necessary for an individual point. The U.S. Supreme Court has unequivocally held that the “Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975). When a defendant decides to dispense with counsel, the “state may not force a lawyer upon him.” Id. at 807. The decision to represent oneself must be made (1) 51 competently, (2) knowingly and intelligently, and (3) voluntarily. Godinez v. Moran, 509 U.S. 389, 400–401 (1993). Texas Code of Criminal Procedure Article 1.051(g) dictates that if, after advising the defendant of the dangers of self-representation, the court determines that the waiver is voluntary and intelligently made, a specific procedure shall be followed: [T]he court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings: “I have been advised this ______ day of __________, 2 ____, by the (name of court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel. (signature of defendant)” Id. On two occasions, Mr. Turner intimated and requested that he be able to represent himself. The first time was prior to the beginning of trial. His counsel had informed him of his right to proceed pro se and asked the Court to inquire about his wishes on the record. (RR10, 35). The following exchange occurred: THE COURT: Well, I'll make that inquiry; but Mr. Turner needs to be aware that it is this Court's practice and custom for Defendants who wish to represent themselves, to appoint standby counsel to assist them in the presentation of their case; and in this instance, standby counsel would be you, Mr. McCann, and you, Mr. Moncriffe, and the other attorneys in this case. So with that understanding, Mr. Turner, I will ask you directly, do you wish to represent yourself in this case? 52 THE DEFENDANT: No. THE COURT: All right. With that answer, then I see no reason to go forward with this matter any further. Mr. McCann and Mr. Moncriffe and the other lawyers will remain counsel on the case. THE DEFENDANT: They have not shown me any evidence. I asked to see the -- Actually, I couldn't hear that recording that they spoke of; and they said that they would bring it in and have it with me live. That's the only thing that they've brought me, and I couldn't understand it. Id at 35-36. After allowing Mr. Turner to tell the Court the things that his attorneys had not done and requiring counsel to answer those complaints, the hearing ended with the judge telling Mr. Turner: THE COURT: That's what he's there for, Mr. Turner, is to make those kind of decisions; and whether you get another attorney or not, the law speaks to the law; and whether it's relevant or not is a legal question that your attorneys are here for. All right. If there's nothing else that you wish to add, I have no reason to remove these lawyers. They will continue to be your counsel. I suggest you start cooperating with them. These instructions indicated he would always have one attorney or another and that his attorneys, who he was attempting to fire, would still be standby counsel. He was led to believe he was not permitted to represent himself. Mr. Turner did not try to invoke his right to represent himself until evidence closed in the guilt-innocence portion of the trial. By that point in the proceeding, his attorney had admitted Mr. Turner’s guilt to the jury and called him a liar on the stand. Before closing statements, Mr. Turner addressed the Court. (RR57, 4). 53 They have seriously neglected my case. They have ignored the information I have provided them for my defense. Witnesses for my defense haven't been contacted that I've given them. He made up -- he came up with an opening statement when I had -- signed an affidavit or even told him that I - that I killed anyone. So where did he get this opening statement from, that it's an accident? He has not defended me. Id. Mr. Turner’s counsel requested the Court to consider particular factors in making its decision. (RR57, 5). Those factors included Mr. Turner’s incompetency and paranoia, his unfamiliarity with the jury charge that was going to shortly be presented to the jury, and the potential that Mr. Turner would be “essentially defending his own life in a punishment case in which he has refused to acknowledge any responsibility for the crime. I cannot conceive of a worse time for him to attempt to exercise this right” Id. Again, the Court questioned counsel about Mr. Turner’s allegations of neglecting his case. Mr. Turner was definitive in his wish to represent himself and the Court virtually ignored Mr. Turner’s request: THE DEFENDANT: “That’s it. I’ve fired him. It’s not his decision.” THE COURT: Well, it's not your decision to fire your defense team, Mr. Turner; it's my decision. And there are no grounds that you have asserted this morning that Mr. McCann and your defense team have not already covered, have not covered in the past. We have gone over this in the past. Your motion is denied. THE DEFENDANT: I expected you to do that. 54 (RR57, 13)(emphasis added)30. Although, at this point, the jury was already seated, the Court clearly did not find that dispositive of the request’s timeliness because it was analyzing if it was proper to accept Mr. Turner’s waiver of his right to counsel.31 If the Court had engaged in the correct analysis, it would have allowed Mr. Turner to exercise his right to selfrepresentation, regardless of the stage of trial. Furthermore, there is not anything in this record that would reflect that had the trial judge honored appellant's demand for self-representation at that point in time, this would have caused such a disruption of the proceedings as to have affected the administration of justice. Johnson v. State, 676 S.W.2d 416, 420 (Tex. Crim. App. 1984). Mr. Turner asserted his right immediately before the closing statements for the culpability phase. If necessary, the Court would be beginning the punishment phase of the trial—a point in time when disruption would be minimal32. A clear path This Court has provided explicit instructions on the options available to a trial court in this situation. It is a defendant’s decision to fire counsel with some limitations. A person does not have to explain his reasons for representing himself as the Court seemed to require here. 31 To be considered timely, an invocation to the right of self-representation must occur before the jury is seated. Blankenship v. State, 673 S.W.2d 578, 585 (Tex.Cr.App.1984). Here, Mr. Turner’s first complaint to the Court was well before trial. However, it was met with the same questioning of defense counsel as his later invocation was. 32 A defendant has a right to represent himself in the punishment phase of a death penalty trial. United States v. Davis, 01-30656, 2001 WL 34712238 (5th Cir. July 17, 2001). 30 55 A trial court has essentially three options when confronted with an accused who makes an eleventh hour request for change of counsel. First, at its discretion the court can appoint, or allow the accused to retain, new counsel. Second, should the trial court deny new counsel, and the accused unequivocally assert his right to self-representation under Faretta, persisting in that assertion after proper admonishment, the court must allow the accused to represent himself. Third, unless the trial court allows new counsel, it must compel an accused who will not waive counsel and does not assert his right to self-representation to proceed to trial with the lawyer he has, whether he wants to or not. Burgess v. State, 816 S.W.2d 424, 428-29 (Tex. Crim. App. 1991)(emphasis not added). The Court would not provide Mr. Turner with different counsel, therefore option one was not appropriate. Option three applies to a defendant that will not waive his right to counsel. Here, Mr. Turner unequivocally “fired” his attorneys and pointed out that the strategy “was not their decision.” (RR57, 13). So, option three was not available. Option two was the correct course for the trial court to take. However, neither step of that option was followed. Mr. Turner was never admonished regarding the dangers and disadvantages of proceeding without counsel. And, obviously, he was not allowed to represent himself. Competently, knowingly and intelligently, and voluntarily Mr. Turner was denied the opportunity to even illustrate that his request to represent himself met the legal requirements. The Court had already determined that he was competent and there is nothing at all in the record to indicate that the request was involuntary. An uncoerced decision is made “voluntarily.” Collier v. State, 959 S.W.2d 621, 626 (Tex. Crim. App. 1997). No one has suggested that his waiver was coerced. 56 It was the Court’s duty to give Mr. Turner Faretta warnings to determine if the motion was “knowingly and intelligently made.”33 The waiver must be made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self-representation.” Id. The Court had counsel answer to Mr. Turner in an effort to prove he was providing good representation. The quality of representation that Mr. Turner was receiving is wholly irrelevant to his constitutional right to represent himself. “A criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation.” Godinez v. Moran, 509 U.S. 389, 400 (1993). In addition to the quality of counsel being legally irrelevant, it is also factually irrelevant: “But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly.” Faretta at 834. The Court required Mr. Turner to have counsel during the proceeding. On the face of the record, it appears the basis for that ruling was that trial counsel was doing a sufficient job. That reason is not good enough to deny him his constitutional right of self-representation. There is “no ‘formulaic questioning’ or particular ‘script’ to assure itself that an accused who has asserted his right to self-representation does so with eyes open.” Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). 33 57 The denial of Mr. Turner’s constitutional right to represent himself and the failure of the Court to properly give Mr. Turner the mandated Faretta warnings require that this case be remanded to the trial court for new culpability and punishment trials. POINT OF ERROR TWENTY-ONE THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR ALEX SHANNON IN VIOLATION OF BATSON V. KENTUCKY POINT OF ERROR TWENTY-TWO THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR JUSTIN BROWN IN VIOLATION OF BATSON V. KENTUCKY POINT OF ERROR TWENTY-THREE THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR SAMPSON RUBIN IN VIOLATION OF BATSON V. KENTUCKY POINT OF ERROR TWENTY-FOUR THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING THE STATE TO STRIKE JUROR KWAMEENA EDWARDSMONTGOMERY IN VIOLATION OF BATSON V. KENTUCKY Appellant’s points of error are based on the same set of facts. As a result, the points will be briefed together in an attempt to avoid unnecessary repetition. Appellant submits this summary of evidence as a preface pertinent to all points of error, and sets out more particular details when necessary for an individual point. 58 The State used its peremptory strikes in violation of Batson v. Kentucky 476 U.S. 79 (1986) and Texas Code of Criminal Procedure Art. 35.261. In this case, individual voir dire was conducted to qualify a panel of 6834. General voir dire was then conducted with that panel. The panel consisted of 37 whites, 18 African Americans, 11 Hispanics, 1 South Asian and 1 East Asian individual. There was a total of 8 African American Males on the panel. The State used its peremptory strikes to eliminate three (or 37.5%) Black individuals: Alex Shannon, Justin Brown, and Sampson Rubin. Moreover, these were the only three of the eight African American males on the panel that were among the first 30 jurors, and those were the three the State struck. Additionally, the State struck an African-American female venireperson, Kwameena Edwards-Montgomery. Oftentimes, the individuals in the back of a panel are superfluous because selection begins with the first juror. Turner's trial counsel objected to all four strikes, and the trial court held a short Batson hearing. During the hearing, the State provided its “race neutral” explanations for the strikes. However, the reasons provided also applied to other panel members who were 34 The sequence of general and individual voir dire was switched from the process described in Article 35.17 of the Texas Code of Criminal Procedure: In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court. 59 not struck. Moreover, at least some of the purported race neutral justifications for striking some jurors would have supported a challenge for cause by the State; however, the State made no such challenges against the black jurors it later struck. The United States Supreme Court has held that the Equal Protection Clause prohibits racial, ethnic and gender discrimination in the use of peremptory challenges to prospective jurors. See Batson v. Kentucky, 476 U.S. 79 (1986). The interests protected by Batson are not only the rights of the defendant, but also the rights of the excluded juror and society's interest in a jury selection process free from discrimination, as well as the preservation of public confidence in the judicial system. Id. at 87. The Supreme Court further clarified that Batson challenges may be based on gender as well as race. J.E.B. v. Alabama, 511 U.S. 127, 130 (1994). Further, the challenge is not limited to potential jurors of the same race as the defendant. Powers v. Ohio, 499 U.S. 400, 402 (1991). Step by step Three steps are necessary in order for a trial court to evaluate a Batson claim. First, a defendant must make a prima facie case that the exclusion was based on race. Batson at 96-97. The State must then offer a race-neutral basis for striking the juror. Id. at 97-98. The trial court must then determine whether purposeful discrimination has been shown. Id. at 98. During the third step, “[c]ross-examination is necessary... because once the State has met its burden of coming forward with neutral explanations for its peremptory strikes, the burden to show purposeful discrimination shifts back to the defendant to impeach or refute the neutral explanation or show that it is merely a 60 pretext.” Salazar v. State, 795 S.W.2d 187, 192 (Tex. Crim. App. 1990) (remanding case for proper Batson hearing where State struck sole minority juror.). A prima facie case may be established where the State has excluded the only minority juror. Id. at 193-94 (finding that strike of only minority juror constituted prima facie case of race-based exclusion and noting “the initial burden in establishing a prima facie case of discrimination is not onerous.”). Moreover, a prima facie case may be established even where minority members are seated on a jury, as in this case. Linscomb v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992). (Observing that “the United States Constitution is offended by so much as a single strike exercised on the basis of race.”). In order to satisfy the second step, “a reason is deemed race-neutral so long as no discriminatory intent is inherent in the explanation given, even if the explanation is fantastic or implausible.” Williams v. State, 937 S.W.2d 479, 485 (Tex. Crim. App. 1996). However, once the third step is reached, the U.S. Supreme Court has evaluated the credibility of the prosecutor based upon how reasonable or how improbable the explanations were and whether the proffered rationale had some basis in accepted trial strategy. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 338-39 (2005). “'At that [third] stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.'” Mandujano v. State, 966 S.W.2d 816, 820-21 (Tex. App.—Austin 1998). (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). The U.S. Supreme Court has reversed a trial court's determination and found such pretext. See Snyder v. Louisiana, 552 U.S. 472, 482 (2008) (finding prosecutor's stated concern that a 61 juror would rush to convict of a lesser offense in order to return to his student teaching duties to graduate on time “highly speculative” and holding that the trial court committed clear error in rejecting the Batson challenge). “In examining a Batson claim on appellate review, the reviewing court must determine whether the trial court's findings were clearly erroneous by examining the evidence in the light most favorable to the trial court's ruling.” Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996). “Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.” J.E.B. v. Alabama, 511 U.S. 127, 145 (1994) (noting that all prior gender-based peremptory cases to reach Federal Courts of Appeals involved the striking of minority women). “Allowing parties to remove racial minorities from the jury not because of their race, but because of their gender, contravenes well-established equal protection principles and could insulate effectively racial discrimination from judicial scrutiny.” Id. In this case, the State struck (inter alia) every single African-American male in a position to be seated on the jury. Moreover, its reasons for doing so were merely pretexts to disguise racial discrimination in violation of Batson and its progeny. In the case of Alex Shannon, the State claimed that “he had to have proof way beyond a reasonable doubt, that he wanted basically no doubt...” in order to convict. (RR52, 56). The State cited his answer that the death penalty was “'[o]kay if done fairly if that's the only conclusion'... therefore, that was the reason I struck him.” Id. However, the State made no challenge for cause against Mr. Shannon once it had taken and heard 62 his testimony during individual voir dire. (See RR41, 66-110). Moreover, the contention that Mr. Shannon required the removal of all doubt is belied by his answers to the State's own questioning during voir dire. (RR41, 66-110). MR FELCMAN: Do you fit in that kind of category [requiring the removal of all doubt], or could you follow beyond a reasonable doubt? VENIREPERSON: I can follow beyond a reasonable doubt, yeah. MR FELCMAN: Okay. Okay. Good. Now, if I proved what's in here, what's in the indictment beyond a reasonable doubt, the law requires you to find the defendant guilty. It's just that straightforward. VENIREPERSON: Uh-huh. MR. FELCMAN: That's what the Judge will tell you. VENIREPERSON: All right. (RR41, 82). The State's additional contention that it struck Mr. Shannon because of his answer that the death penalty was acceptable “if done fairly if that's the only conclusion” is also belied by its own examination of Mr. Shannon. (RR52, 56). During voir dire, the State elicited the following testimony from Mr. Shannon: MR FELCMAN: Tell me something, how do you feel about that particular question [concerning mitigating factors in the imposition of the death penalty]? Do you think you will be able to answer that question based upon the evidence, or do you have something built in your mind already? VENIREPERSON: No, I'll -- I'll base it upon the evidence. MR FELCMAN: Okay. Do you -- do you have a feeling one way or the other, Mr. Shannon, because of the way you feel that maybe life may be more effective than a death sentence that you would try to answer this one 63 way or the other based upon just that feeling and not based upon the evidence? VENIREPERSON: No, I can't answer anything based upon feelings. That wouldn't be -- That would not be fair. MR FELCMAN: That's correct. VENIREPERSON: I need to know about the evidence. I have to know. I need to know the evidence. MR FELCMAN: Good. That's why you said "if it's done fairly." If you follow the law, you've done it fairly. We look for fair and impartial jurors, and the first question is on fairness. If you follow what the Judge tells you to do and you base your decision on the evidence, then you have been fair to both sides. It’s just that simple. VENIREPERSON: Uh-huh. (RR41, 95-96). Mr. Shannon's assertion that he could follow the appropriate standard for burden of proof flatly contradicts the State's purported race neutral justification for striking him: that he said he could not. Cf. (RR52, 56); (RR41, 82). This goes beyond the “implausible or fantastic justifications” Texas courts and the U.S. Supreme Court have said would be revealed as pretexts (see, e.g., Mandujano at 820-21; see also Purkett at 768); the proffered race neutral justification is simply false, and failure to recognize the Batson violation was error by the trial court. In the case of Justin Brown, the State offered the following race neutral justification: 64 “...First of all, he wants to be a lawyer. He wants to try things. He says he is an arguer. You actually the first time asked about if this was his first time with regard to the defendant being in trouble or was bad his whole life, and he agreed with you on that. He also put in here that he was actually a No. 2 and he was opposed to the death penalty, so those were the reasons I put down. That's what my notes indicated on there. I had a negative after questioning him on the original questioning, Judge.” (RR52, 58). However, his answers on his juror questionnaire did not indicate that he was opposed to the death penalty, but rather that he was neither generally opposed nor generally in favor of it. See Justin Brown Juror Questionnaire at 17; see also (RR28, 41). Further, the prosecutor specifically confirmed these answers during voir dire: MS. STOTTS: One of the questions asked you, basically, to rate yourself on how you feel about the death penalty, okay, and you marked right in the middle of the road, No. 3: "I'm neither generally opposed nor generally in favor of capital punishment." You've had a couple of weeks to think about that. Is that still how you feel? VENIREPERSON: Yes. MS. STOTTS: Okay. Then it asks you to assume that you're on a jury and determining the sentence for a defendant who’s being convicted of a very serious crime, okay? VENIREPERSON: Okay. MS. STOTTS: And it says the law gives you a choice of death or life imprisonment or some other penalty, and it asks you, again, to check one, all right. And, again, you put No. 3, right in the middle: "I would consider all of the penalties provided by law and the facts and circumstances of the particular case." VENIREPERSON: Uh-huh. 65 MS. STOTTS: Is that still how you feel, also? VENIREPERSON: Yes. (RR28, 41-42). Once again, the State's purported race neutral justification for striking an AfricanAmerican juror is simply, demonstrably false. In addition, the contention that a reason to strike Mr. Brown because “[h]e wants to be a lawyer... He wants to try things[; h]e says he is an arguer” falls well within the realm of “implausible or fantastic justifications[.]” (RR52, 58). Virtually every trial and appellate court judge was once an aspiring lawyer, and to suggest that that ambition means such individuals cannot fairly or impartially determine facts or apply the law is patently absurd. Tellingly, the State made no challenge to Mr. Brown for cause when it heard and took his testimony during individual voir dire. (RR28, 40-63.) Even if the State had concerns about how Mr. Brown would weigh the imposition of the death penalty despite his voir dire testimony, it applied those concerns differently to this African American venireperson than to others. For example, Mr. Luis Ovalle (a juror who was ultimately empanelled) went further than Mr. Brown in his voir dire testimony and actually stated that he would prefer to impose a punishment of life imprisonment over the death penalty. (RR35, 30-31). In the case of Sampson Rubin, the State claimed that “He had a much better rapport with [Turner's trial counsel,]” volunteered in prisons, felt too many people were on death row and wanted to be certain life without parole precluded any possibility of 66 parole. (RR52, 60). However, he also indicated on his questionnaire and during his testimony that he favored capital punishment “except in few cases where it may not be appropriate.” See Sampson Rubin Juror Questionnaire at 17; see also RR51, 105. The defense attorney who conducted Mr. Rubin's voir dire, Mr. Tyrone Moncriffe, is African American, as are Mr. Rubin and Appellant Turner himself. Mr. Turner was on trial for the murder of his wife and mother-in-law, both of whom were white. Moreover, the State's cited race neutral reasons for striking Mr. Rubin reveal similarities between him and non-African American jurors who were ultimately empanelled on the jury without being subject to preemptive strikes by the State. For example, juror Tracy Munsey's husband once had a prison Bible ministry and still receives communications from some ex-prisoners (although she did not participate in the ministry). (RR19, 142). Juror Carl Petrosky stated that the death penalty should be difficult to impose and should be the “final option” sentence. (RR31, 31). Both Tracy Munsey and Carl Petrosky were empanelled as jurors and neither is African American. Because Mr. Rubin is the third of three African American males to be struck within the range of venirepersons to be empanelled, it is appropriate to see the pretext in the State's use of this strike. In the case of Kwameena Edwards-Montgomery, the State cited its belief that she was strongly opinionated, that the death penalty was used too often, and her rapport with 67 Turner's trial counsel as race neutral reasons to strike her.35 Again, the prosecutor justified this strike because of her “better rapport” with Appellant’s African American attorney. Again, as revealed by the State's pattern of strikes, the exclusion of this minority venireperson can appropriately be seen as mere pretext to conceal racial discrimination. See, e.g., J.E.B. at 145. Because Mr. Turner was denied a jury of his peers, and that jury convicted him and sentenced him to death, Appellant respectfully requests that the case be remanded for new culpability and punishment trials. CONCLUSION AND PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that this Court reverse his conviction and punishment and remand this case to the trial court. Respectfully submitted, ______________________________ ROBERT MORROW State Bar No. 14542600 24 Waterway Ave., Suite 660 The Woodlands, Texas 77380 Telephone: (281) 379-6901 Facsimile: (832) 813-0321 35 For two of its four preemptive strikes, the State cited an African American venireperson's purported “rapport” with Appellant Turner's African American trial counsel, Mr. Tyrone Moncriffe. It is noteworthy that the State did not cite any venireperson's purported “better rapport” with Mr. Pat McCann as a race neutral reason for a preemptive strike. 68 ______________________________ AMY MARTIN State Bar No. 24041402 202 Travis St., Suite 300 Houston, Texas 77002 Telephone: (713) 320-3525 Facsimile: (866) 906-3745 ATTORNEYS FOR APPELLANT APPOINTED ON APPEAL ONLY CERTIFICATE OF SERVICE As required by the Texas Rules of Appellate Procedure, I certify that I have served this document on the Fort Bend County District Attorney’s Office on the _____day of September, 2012 in accordance with the Texas Rules of Appellate Procedure. ______________________________________ ROBERT MORROW 69