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IN RE: Morris Wayne SIMON

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Court of Criminal Appeals of Texas.

IN RE: Morris Wayne SIMON, Relator. v. Lena LEVARIO, 204th Judicial District Court of Dallas County, Respondent.

No. AP-76183.

Decided: November 18, 2009

Catherine Bernhard, for Morris Wayne Simon. Michael R. Casillas, for State of Texas. Christina O'Neil, for 204th District Court.


The relator was indicted in Dallas County for the offense of capital murder. The State elected not to seek the death penalty. During pretrial proceedings, the relator “indicated that [he] seeks to present the testimony of a mental health expert in regards to [his] mental state and the voluntariness of his confession.”1 In response, the State filed a motion seeking to have the relator evaluated by its own psychiatric expert so that it could be prepared to rebut any expert testimony the relator might offer in a pretrial suppression hearing or at trial. The trial court granted the State's motion, ordering the relator to submit to an examination by a State-designated expert. The State's expert was specifically ordered not to interrogate the relator about the facts of the offense itself and not to reveal the results of his examination to the prosecutors unless and until the relator's expert should testify.

The relator has now filed an application for writ of prohibition in this Court, seeking relief from the trial court's order subjecting him to examination by the State's expert.2 The relator argues that the trial court's order impinges upon his Fifth and Fourteenth Amendment right to be free from compelled self-incrimination. He argues that the authorities cited by the State in support of the trial court's order are factually distinguishable from his case, and that none expressly permits the examination by a State's expert under the circumstances presented here. Because we find that the relator has failed to satisfy at least one of the criteria for obtaining extraordinary relief, we deny his application.


The traditional test for determining whether mandamus or prohibition relief is appropriate requires the relator to establish two things.3 First, he must show that he has no adequate remedy at law to redress the harm that he alleges will ensue if the act he wishes to prohibit is carried out.4 Second, he must show that the act he seeks to compel or prohibit does not involve a discretionary or judicial decision.5 If the relator fails to satisfy either aspect of this two-part test, then relief should be denied. As to the latter requirement, we have said that it is satisfied if the relator can show he has “a clear right to the relief sought”-that is to say, “when the facts and circumstances dictate but one rational decision” under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles.6

While a trial court has a ministerial duty to rule upon a motion that is properly and timely presented to it for a ruling, in general it has no ministerial duty to “rule a certain way on that motion.”7 By this we mean that mandamus or prohibition will not lie to “compel the trial court ‘to rule a certain way’ on an uncertain and unsettled issue the resolution of which involved a fair amount of discretion.”8 In short, it is improper to order a trial court to exercise its judicial (as opposed to its ministerial) function in a particular way unless the relator has a “clear right to the relief sought,” i.e., the law he invokes is definite, unambiguous, and unquestionably applies to the indisputable facts of the case. Even when the facts are undisputed, the extraordinary mechanism of a writ of prohibition or mandamus will not lie to resolve “a hotly contested unsettled ‘question of law’ [.]”9


For the proposition that it should be allowed to have its expert examine the relator, the State invoked our opinion in Lagrone v. State.10 The relator argues that Lagrone is distinguishable because there, the defendant proposed to introduce expert testimony with respect to the issue of future dangerousness in a capital case in which the State sought the death penalty. The State responds that the particular factual context matters little-the principle is the same, namely, that once a criminal defendant constructively testifies by submitting to an examination in support of his own testifying expert's opinion, he has waived his Fifth and Fourteenth Amendment privilege against self-incrimination, and so must choose either to submit to an examination by the State's expert as well or else have his own expert's testimony excluded from evidence.

In support of its argument, the State cites this Court's unpublished opinion in Ward v. State.11 There we unanimously held, citing Lagrone and Chamberlain v. State,12 that the operative principle was one of waiver of the Fifth and Fourteenth Amendment privilege, and that it was not limited to the factual context of rebutting expert testimony from the defense with respect to future dangerousness. We articulated the principle thus:

[I]f a defendant breaks his silence to speak to his own psychiatric expert and introduces that testimony which is based on such interview, he has constructively taken the stand and waived his fifth amendment right to refuse to submit to the state's psychiatric experts. The focus is on the defendant's choice to break his silence. * * * The issue is whether the psychiatric testimony he intended to introduce was based on his own participation in the psychiatric testing and examination.13

Focusing on the waiver, we held that the holding of Lagrone applied equally to psychiatric evidence in mitigation of the death penalty. “The nature of the psychiatric testimony to be presented is immaterial-that it is being presented by the defendant is enough to trigger the rule.”14 We deemed this principle sufficiently unremarkable that we did not even see fit to designate our opinion for publication.

We do not now rely on our unpublished opinion in Ward for the proposition that the trial court did not err to grant the State's motion for its own psychiatric examination in the factual context of this non-death capital prosecution. But we do regard it as ample evidence that the issue is-at best-an “unsettled” legal question. If what we said in Lagrone is not limited in principle to the type of psychiatric evidence presented at the punishment phase of a death-penalty case, it may not be limited in principle to the punishment phase of a capital murder death-penalty trial, or even to death-penalty cases at all. Accordingly, we cannot say under the circumstances of this case-and particularly in view of the tight restrictions the trial court imposed on the State in its order-that the relator has established a clear right to be insulated from examination by a State's psychiatric expert.15 In granting the State's motion in this case, the trial court exercised a manifestly judicial (and not a ministerial) function.16 Such an “accomplished judicial act” is not subject to the extraordinary remedy of prohibition.17

For this reason, we deny the relief that the relator seeks.

PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

KELLER, P.J., concurred in the result.

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