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Court of Criminal Appeals of Texas.

Albert James TURNER, Appellant v. The STATE of Texas.

No. AP–76580.

Decided: October 30, 2013

Gail Kikawa McConnell, Assistant District Attorney, Richmond, TX, for Appellant. Robert A. Morrow, Attorney at Law, The Woodlands, TX, for the State.


The appellant was convicted of the intentional murder of more than one person during the same criminal transaction, namely, his wife and his mother-in-law, which is a capital offense.1 The jury answered the statutory special issues in such a way that the trial court was required to assess the death penalty.2 Direct appeal is automatic in this Court.3

The appellant does not challenge the sufficiency of the evidence to support either his conviction or death sentence. In fourteen of his twenty-four points of error, he claims that he was incompetent to stand trial, or that the trial court should at least have paused the proceedings at various stages of trial to conduct a formal competency hearing, as his trial counsel repeatedly requested.4 In order to address these various points of error adequately, we must undertake a detailed recitation of certain events transpiring before and during trial.


The evidence at trial showed that, just after midnight on December 27, 2009, the appellant entered the home of his in-laws and killed his wife, Keitha Turner, and his mother-in-law, Betty Jo Frank, cutting their throats while his three young children were present in the house.5 Although we find no indictment in the clerk's record, the docket sheet indicates that on March 3, 2010, Ralph Gonzalez was appointed to represent the appellant, that a grand jury indicted the appellant for capital murder on April 5, 2010, and that, on May 17, 2010, Gonzalez filed a motion to have the appellant evaluated for his competency to stand trial. The trial court immediately granted that motion, and the appellant was promptly evaluated by two forensic mental-health experts: psychologist Dr. Karen Gollaher and psychiatrist Dr. David Axelrad.

I. The Facts

A. The Initial Competency Reports

Dr. Gollaher conducted the first evaluation on May 18th and 19th, 2010. In her report, Gollaher notes that the appellant “reported the belief that his wife had been having an affair for many years with the Mayor of Kendleton, Texas [,]” but that “she had repeatedly denied any extramarital relationship, calling him paranoid.” Gollaher also noted that the appellant's recent jail records “appear to refer to possible delusional thinking[.]” While the appellant denied any such delusional thinking during the evaluation, Gollaher nevertheless noted “several statements” that he made to her “that raise[d] the possibility of paranoid thinking.” Moreover, “he reported the jail psychiatrist prescribed him Risperdal but he has not taken his medications because he does not believe he needs it.”6 Gollaher did not diagnose the appellant as suffering from any particular thought disorder. She did not believe his possible paranoid thoughts would “undermine his ability to participate in the court procedures.” She also concluded that the appellant was “capable of communicating events in an understandable manner and can report his state of mind.” It was her ultimate professional opinion that the appellant was, as of that time, competent to stand trial.

Dr. Axelrad evaluated the appellant a month later, on June 14, 2010, also ultimately concluding that he was competent to stand trial. In his report,7 however, Axelrad acknowledged that the appellant “is an individual who may have a mental illness and the diagnosis may be a paranoid disorder.” Although he did not note any impairment in the appellant's thought process or content, he nevertheless found the appellant to be “mildly impaired” in his abilities: 1) to disclose to counsel pertinent facts, events, and states of mind; 2) to engage in a reasoned choice of legal strategies and options; and 3) to engage with counsel. From the recent jail records, Axelrad noted that the attending psychiatrist had found the appellant to be “exhibiting some paranoid ideation, and he does appear to be delusional.” The appellant also exhibited “some paranoid ideas” and “mild paranoid functioning” during Axelrad's evaluation. The appellant reported to Axelrad that he had “lost confidence in his attorney, and [he did] appear to have significant problems in his relationship with his current attorney, Mr. Gonzalez.” The appellant would not discuss the circumstances of the offense with Axelrad; consequently, Axelrad was “unable to address, at this time, as to whether [the appellant] had a paranoid disorder. In the event he has a paranoid disorder, this may be contributing to the problems he is experiencing with his attorney.” With this caveat, Axelrad concluded that the appellant was nonetheless competent to stand trial—and even that he was competent “to enter into plea negotiations concerning his alleged offense in the event that he and his attorney can develop an effective working relationship.”

B. Pretrial Proceedings

The first pretrial hearing on record was an ex parte conference that took place in chambers on June 23, 2010. By this time the trial court had appointed a second attorney, Pat McCann. Gonzalez reported to the trial court that, while he had not yet seen the experts' competency reports, he had been told that Gollaher deemed the appellant competent to stand trial and that Axelrad had found him to be “perfectly fit.” Even so, Gonzalez informed the trial court that “[w]e're having difficulty with [the appellant] accepting a lot of things that happened. And one of the biggest things is his family, his children. There is a little bit of disconnect right now.” Nevertheless, the appellant's counsel did not request any further proceedings at this time with respect to his competency to stand trial.

More than four months later, on November 9, 2010, counsel for the appellant filed a notice of intent to take the depositions of two of the appellant's children. On November 22, 2010, in open court, at the beginning of a hearing on pretrial motions, the appellant personally informed the trial court that he had filed a grievance against his lawyers and wanted a new “defense team” appointed. He complained that he did not wish to have his children deposed and that his lawyers had not explained to him the purpose behind the various pretrial motions on file. Defense counsel denied that they had failed to explain the motions and asserted that they needed to depose the children to obtain discovery and for other undisclosed purposes in the service of their client's best interests. The trial court denied the appellant's request for new lawyers.

Another ex parte conference occurred in chambers on December 10, 2010,8 the same day that the deposition of the appellant's children was originally scheduled. The appellant's counsel revealed that the relationship between the appellant and Gonzalez had deteriorated to the point that the appellant had physically threatened Gonzalez. Gonzalez related:

In my thirty years, I've been threatened on several occasions but never as adamantly and never [as] menacingly as this guy. I believe that no matter what I tell him, if I could tell him that he would be getting out of jail tomorrow and nothing would happen to him, he would not believe me. There is nothing that I can do to convince that man that I have anything of benefit to do for him or that I can do for him.

Because the attorney/client relationship had become so “untenable,” Gonzalez filed a motion to withdraw. That same day, in open court, the appellant personally reiterated that he was “opposed to the depositions” of his children and did not “want Mr. Gonzalez on my case.” The trial court granted Gonzalez's motion to withdraw. Because Gonzalez had been the member of the defense team who had prepared to conduct the depositions, they were rescheduled. On December 14, 2010, the trial court appointed Tyrone Moncriffe to replace Gonzalez and, on January 5, 2011, the trial court granted the defense a trial continuance until April 18, 2011, with final pretrial motions to be heard on April 11, 2011, in order to give Moncriffe sufficient time to familiarize himself with the case.

The April 11th hearing began with a renewal of the appellant's efforts to replace his trial counsel. The trial court had received “letters” by fax from a woman purporting to be the appellant's sister that asked the trial court to “fire[ ]” the appellant's trial counsel. Because the faxed copies of the letters did not bear his signature, however, the appellant refused to “endorse” them as his. The trial court therefore declined to “take them up[.]” McCann told the trial court that “we are doing everything possible to prepare for this trial; but [the appellant] has not agreed to speak with us on many occasions[.]”

Later during the same pretrial hearing, the trial court returned to the issue of the appellant's displeasure with his trial counsel, directly asking the appellant whether he wished to represent himself. The appellant unequivocally responded, “No.” He complained, however, that trial counsel “have not shown me any evidence.” He acknowledged that they had played for him a recording of the 911 call in which his daughter had reported the murders, but he complained that he had not been able to hear it. McCann answered that the appellant had been provided everything except for the actual physical evidence, including offense and autopsy reports, and that, not only had the appellant been able to hear the 911 recording, it had made him weep. McCann agreed to make all the evidence available for the appellant again. The appellant then complained that his lawyers had not contacted the Mayor of Kendleton or conducted any paternity testing to determine whether the Mayor was the real father of the appellant's youngest child. McCann explained that they had in fact interviewed the Mayor but that the result of any paternity testing was, in any event, “sadly not legally relevant.” The trial court informed the appellant that it would not remove trial counsel from the case and suggested that he “start cooperating with them.”

Later that same day, another ex parte conference took place in chambers. McCann informed the trial court that “we're going to attempt to go speak with him; but at some point, based upon his clear paranoia that somehow I and the rest of the Defense team are working with the State to ensure his conviction, we may need to revisit competency at some point with you.” The trial court responded that “we can do a competency exam while we are doing the voir dire.”

C. Voir Dire

Voir dire was set to commence the next week, on April 18, 2011. In the interim, McCann filed a “Motion for a Contested Competency Hearing.” Attached to this motion were an affidavit from Moncriffe, dated April 7, 2011, and a competency evaluation from a neuropsychologist, Dr. Shawanda Williams–Anderson, dated April 12, 2011. Moncriffe explained that it was part of the defensive strategy to depose the appellant's children and then agree for the State to use the deposition testimony in lieu of live testimony at trial, since, in their estimation, “the impact of [the appellant's] children describing their mother and grandmother's horrible [deaths] was much more damaging live than by deposition.” Accordingly, McCann had conducted the depositions on April 1, 2011, while Moncriffe and the appellant watched by video link from an adjoining room. The appellant watched with “a bewildered look on his face.” Afterwards, he yelled at his lawyers, accusing them of making his children testify against him, in conspiracy with the District Attorney. “He cannot assist his defense team,” Moncriffe concluded, “nor does he have a rational understanding of the magnitude of these proceedings. He seems to have one train of thought and he disregards all other rational thoughts completely.” Dr. Williams–Anderson evaluated the appellant on April 12, 2011. She concluded that, “[b]ecause of the seriousness of [the appellant's] charges, his unwillingness to participate in his defense, and his extreme distrust of every member of his team, his competency to stand trial is questionable.”

At a hearing on the motion for a formal competency hearing, which convened on April 18th, the first day of voir dire, McCann argued that the appellant's “paranoia has grown to the level of delusions[ .]” “It's become an issue to the point where [the appellant] actively appears to believe that we are working against his own interests, and the delusion seems complete and full-blown.” McCann explained that the appellant's

attitude has gotten worse in the last several weeks, that we have spent numerous hours with [him] over the last several days since the hearing on the 11th; and we have all come to the conclusion that at this point he is—although he interacts with us on this plane of reality, he frankly is thinking and living in another one that does not appear to comport with either the evidence we've shown him, our views of the case, or anything that we can determine as a group as rational.

Responding to the prosecutor's argument that simple disagreement between a lawyer and his client does not raise an issue of competency, and the trial court's request that McCann “focus on the fact that we've already conducted the competency evaluation in this case[,]” McCann asserted:

I have defended serial killers and people who have killed their whole families, and this case is challenging even my ability to ․ see how this could not be originating from anything but mental illness. * * * It has now gotten to a place ․ where [the appellant's] version of the reality of the facts that he deals with day-to-day, whatever evidence is shown, whatever discussions we have, comes from a place of such deep rooted paranoia that I can no longer believe it is simply a difficult person that I'm dealing with.

Given the competency evaluations that had already been conducted by Drs. Gollaher and Axelrad, the trial court found that what Dr. Williams–Anderson characterized as the appellant's simple “unwillingness to participate in his defense” provided insufficient grounds to conduct a competency hearing, and it therefore denied the motion.

McCann broached the subject of competency again about a week into voir dire when, on April 26, 2011, he complained that, “although I have attempted to engage with my client in regards to his opinions, for whatever reason, it appears to have been shut down.” He urged the trial court take up his motion for a competency hearing again. The trial court advised him to file a new motion with accompanying affidavit. McCann apparently did,9 because a renewed hearing was held on April 27, 2011. While persisting in its refusal to order a formal competency hearing, the trial court at this time decided “to direct the Court's behavioral mental health director to do an evaluation to determine whether [the appellant's] status has changed since the last time a competency hearing occurred.”10 Afterwards, “I'll do an initial evaluation about whether [the appellant's] status has changed.” Accordingly, the trial court ordered Dr. Connie Almeida, a licensed clinical psychologist and Director of the Fort Bend County Behavioral Health Services, to evaluate the appellant, with an emphasis on whether he was “able to rationally assist his lawyers in the defense of his case.”

Dr. Almeida filed a report on May 19, 2011, and appeared at a hearing the next day, on May 20th. She testified that the appellant would not cooperate with her several attempts to evaluate him, and that the best she could do was to report her impressions from a half-hour conversation she had managed to have with him on May 17, 2011, during which “[h]e did express disagreement with some of the strategies and ‘tactics' of his defense team.” As of that date, the appellant was not taking any psychotropic medications, nor did the behavioral health staff at the jail deem such medications presently warranted. From all this, Almeida was unable to draw any conclusions about the appellant's competency to stand trial. But she believed there to be “no significant changes in his functioning” since he was initially evaluated for competency by Drs. Gollaher and Axelrad the previous summer. She could not say “definitively” that the appellant was not paranoid.

On cross-examination by the prosecutor, Almeida opined that, “based on my limited interaction with him, I would say that he would have a rational and factual understanding of the proceedings against him.”11 She also acknowledged an observation she had made in her written report that “there is no current evidence to substantiate a delusional or other psychiatric disorder.” Nor was she aware of “any behaviors that warrant a psychiatric intervention” since the appellant had been jailed. She nevertheless stood by her position that she was unable to reach a determination of her own whether the appellant had a present ability to assist his counsel, as the trial court had requested. The best she could say was that she perceived “no significant changes in [his] emotional or cognitive functioning since” the earlier evaluations that would adversely impact his competency to stand trial.

After hearing argument from the parties, the trial court denied the motion for a formal competency hearing. While acknowledging that Drs. Gollaher and Axelrad had made “notation of paranoia” in their initial competency reports, the trial court observed that they had not found the appellant's paranoia to be “sufficient to meet the statutory guidelines” for incompetency. The trial court opined that the appellant's evidence of incompetence, measured against those “statutory guidelines,” “does not call for secondary competency evaluations unless there's a clear change in [the appellant's] whole aspect that raises a clear concern.” The only such change that the trial court could see was the appellant's “failure to cooperate with [counsel] and that's his choice to make [ .]” Even so, the trial court believed this had been enough to justify appointing Almeida, in an abundance of caution, “to explore this area to see if there was such a change that it would require a full competency hearing.” Although Almeida was unable to reach a conclusion whether the appellant's failure to cooperate with his counsel rendered him incompetent, the trial court reasoned, her inability was itself the product of the appellant's choice not to talk to her about his case. “That is a reasoned decision on his part. Does it reach to the level of incompetency, there's nothing to show today that it does that.”

D. Trial on the Merits

Trial on the merits began on May 25, 2011. During opening statements, McCann informed the jury that the defense expected the evidence to show that the appellant killed his wife in a “jealous rage,” but that the killing of his mother-in-law, with whom the appellant had always gotten along, occurring in the close quarters of the upstairs hallway, had not been perpetrated intentionally—that the appellant, while certainly guilty of “two terrible horrible crimes[,]” was not guilty of a capital offense. Along the way, McCann explained to the jury that the appellant “doesn't like me very much.” Later, he observed: “And if you look at him there, he's a large man, as he sits there scowling at me. Because he can't admit what he did, to himself or anybody else.” The ensuing defensive strategy was to acknowledge that the State's evidence showing that the appellant was responsible for the two murders was at least substantial, if not overwhelming, but to try to engender a reasonable doubt in the jurors' minds whether he harbored the requisite culpable intent with respect to the death of his mother-in-law to satisfy the statutory criteria for a capital offense.

On May 27th, the Friday before Memorial Day, the appellant exercised his right to testify in his own behalf, against the advice of counsel. After having the appellant identify photographs of his children, wife, and mother-in-law, McCann simply asked him whether there was “something you would like to tell this jury[.]” The prosecutor objected that the question called for a narrative response. Instructed to narrow his inquiry, McCann asked the appellant whether he had something to tell the jury about the night of the murders. After some additional wrangling, the appellant was allowed to describe in narrative fashion what he had done during the day of December 26, 2009, before the murders. As his narrative approached the time of the murders, however, the trial court directed McCann to ask another question. At a bench conference, McCann explained that he was ethically constrained from asking more specific questions, and the prosecutor speculated that McCann “can't do it because he knows it's a lie.”12 McCann was then allowed to ask the appellant whether he had “something else [he] wanted to add[.]” At that point, the appellant vehemently denied having ever “put [his] hands on [his] wife[,]” and claimed that his daughter had said as much during a portion of her deposition testimony “that y'all recorded over.” When the prosecutor's hearsay objection was sustained, McCann asked the appellant to describe the events after December 27th, and the appellant was once again allowed to narrate. He was not specifically asked on direct examination about the killings themselves.

On cross-examination, the appellant denied having threatened his first attorney, Gonzalez. He claimed that Gonzalez withdrew from the case because the appellant had tried to put a stop to the depositions of his children. The appellant further maintained that his children were coerced into giving the deposition testimony against him. At this juncture, McCann renewed his motion for a competency examination, but the trial court denied it, observing that “[t]here's nothing that I have been shown that changes anything that I have been shown before.” The appellant next denied that his attorneys were “trying to save [his] life[.]” When the prosecutor asked the appellant whether McCann had been misleading the jury panel during his opening statement, the following transpired:

A I asked him, before he made his statement, what—what I was curious about what exactly was he going to make in his opening statement. And the reason I said that—the reason I asked that question is because that we weren't talking. They weren't coming to see me. They didn't want to hear anything I had to say about the things that I was saying about the mayor and all the allegations that I was saying. They wouldn't investigate it. They kept bringing me—I have proof of everything that I'm saying.

Q Do you know they talked to the mayor?

A That's what they told me.

Q I know. Everybody did.

A And I've, you know—I looked at the thing. He was obviously lying.

Q Do you know these two gentlemen have tracked everything you have ever said down?

A No.

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

A I didn't kill anyone.

Q And they're trying to save your life. You understand that?

A I didn't kill anyone.

The appellant further testified that his daughter had made a mistake to identify him as the killer. He explained that he fled the state after the killings because the Mayor had threatened him and had sent two unidentified men to break into his house. Asked whether his lawyers were part of this apparent “conspiracy” against him, the appellant replied that they were not “going out and getting the evidence that I was talking about, and I was wondering why.” The prosecutor wrapped up his cross-examination of the appellant by asking him:

Q All right. Let me ask you this way: Is there any way, Mr. Turner, you want to change any of your story right now and beg for forgiveness from this jury at all?

A I didn't kill anyone.

Q I know. Do you know how dangerous that makes you?

McCann's objection was sustained, but his motion for mistrial was denied. On redirect, McCann simply asked:

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

A It is true.

Shortly after, the defense rested and both sides closed.

On Tuesday, May 31st, the morning that final arguments for the guilt phase were set to begin, the appellant unequivocally announced that he was “firing my defense team and representing myself. I should be able to represent myself at any stage of this trial. I have that right.”13 When the trial court asked why, the appellant asserted:

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.

McCann reminded the trial court that he had recently renewed his request for a competency hearing based upon the appellant's paranoia. Directed to respond specifically to the appellant's complaints, McCann replied:

We have, during the course of this investigation—Without going into too much client confidence, Mr. Turner has indicated that there were entourage members of the mayor of Kendleton who might fit his description as well as other individuals whom he might have hired who was part of his hang-around crew. We have found no such individual who would refute the 100 percent-certain eyewitness identification of his own children during the incident.

THE COURT: Mr. Turner testified that he was afraid of certain individuals and indicated that that was part of the reason why he fled. Did you pursue that investigation?

MR. MCCANN: We have located no such individuals, either as a friend of the mayor of Kendleton nor any indication that the mayor of Kendleton was anywhere near his home on the night that he mentioned, nor that he has any proclivity or, indeed, any real relationship with his wife. That doesn't mean that Mr. Turner didn't think that there was one, but at the same time, we found no such indication.

THE COURT: Mr. Turner has raised the issue that you have not pursued the theory that it was an accident. Would you respond to that allegation?

MR. MCCANN: I understood him to mean that he rejected the theory that it was an accident because his testimony indicated he was not there. The only plausible defense that Mr. Moncriffe and I could see coming from the evidence that we examined is that the second killing—while the first killing may have been an act of passion between a jealous husband and wife, the second killing would appear to have been unintended. At least there was no indication of any quarrel or violence between Mr. Turner and Betty Jo.

And given the circumstances and the placement of the second floor, it is conceivable that he did not intend that killing and that killing was, in fact, either accidental or perhaps done in a reckless manner that would have indicated a lesser charge might be available or that we could argue plausibly that that killing was not intentional.

Based upon these representations, the trial court summarily denied the appellant's demand to “fire” his trial counsel and represent himself. Closing arguments began soon after.

The prosecutors used their opening remarks to highlight the appellant's claim that his children had mistakenly identified him and to pound away at his failure to take responsibility.14 For his part, McCann described the appellant's behavior this way:

When I got up and talked to you in opening, I told you that my client, Albert James Turner, still hasn't accepted what happened because on that night, he snapped. You actually got to watch what he thinks is the truth because he literally cannot accept what happened. In his mind, very sadly, it is the truth.

He then went on to urge the jury nevertheless to accept the defensive theory that the appellant had not intended to kill his mother-in-law and, on that account, to find him not guilty of capital murder.

The State argued in response that the wound inflicted on the appellant's mother-in-law was too severe to justify a finding that it was not intentionally inflicted. Along the way, the prosecutor once again emphasized the absurdity of the appellant's testimony, reminding the jury that even McCann had characterized his story as “drivel.” Later, during their closing arguments at the punishment phase of trial, the State similarly relied upon the appellant's implausible guilt-phase testimony to argue that the remorselessness he displayed in the courtroom and from the witness stand constituted compelling evidence that should convince the jury that he would constitute a future danger to society.15

II. The Law

A criminal defendant who is incompetent may not be put to trial without violating due process.16 “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial.”17 The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.18 Due process also mandates state procedures that are adequate to assure that incompetent defendants are not put to trial.19 To that end, our statutory scheme has codified the constitutional standard for competency to stand trial and has elaborately described the circumstances that require, and procedures for making, a determination of whether a defendant is competent to stand trial.20

A. Substantive Standard

The Texas Legislature has adopted the constitutional standard for competency to stand trial in Article 46B.003(a) of the Texas Code of Criminal Procedure.21 The appellant in this case does not contend that he lacked at least a factual understanding of the proceedings against him. There is no reason to doubt that he understood that his life and liberty were at stake and what roles the various participants in the proceedings played. At issue is whether there was any substantive indication that he lacked either a rational understanding of the proceedings or a present sufficient ability to consult with counsel with a reasonable degree of rational understanding—or, as the trial court in this case ordered Dr. Almeida to assess, whether he was “able to rationally assist his lawyers in the defense of his case.”

The Legislature apparently regards a defendant's capacity to rationally assist in the preparation and execution of his defense to be indispensable to a defendant's competency to stand trial. We may infer this from the fact that it has directed that forensic psychologists and psychiatrists appointed by the trial court to perform competency evaluations should specifically consider, among other things: 1) the defendant's “capacity ․ during criminal proceedings to ․ engage in a reasoned choice of legal strategies and options;” as well as 2) “the impact of the mental illness or mental retardation, if existent, on the defendant's capacity to engage with counsel in a reasonable and rational manner [.]”22 These legislative criteria for competency contemplate a defendant who is at least minimally able to interact with his trial counsel in a “reasonable and rational” way (even if they do not necessarily agree) in formulating decisions how most effectively to pursue his defense.

Other jurisdictions have construed the constitutional standard for competence to stand trial consistent with this understanding. Various courts have declared defendants to be incompetent under the constitutional standard upon findings that they suffered from mental illnesses causing paranoid delusions that impacted their perception of reality in ways that adversely affected their ability to rationally comprehend the proceedings against them or interact rationally with trial counsel.23 And we think there is particular cause for concern when a defendant's mental impairment directly touches upon certain fundamental decisions that the criminal justice system reserves for him to make personally—albeit after “engaging” meaningfully with counsel—such as whether to testify in his own defense.24 Precisely because the defendant retains ultimate authority over these decisions, it is critical that he be able “to consult with counsel with a reasonable degree of rational understanding” about them.25

This is not to imply that a defendant's mental illness plus his failure to communicate with counsel will invariably or necessarily add up to a finding of incompetence. The fact that a defendant is mentally ill does not by itself mean he is incompetent.26 Nor does the simple fact that he obstinately refuses to cooperate with his trial counsel.27 Indeed, even a mentally ill defendant who resists cooperating with his counsel may nevertheless be found competent if the manifestations of his particular mental illness are not shown to be the engine of his obstinacy.28 But when a defendant's mental illness operates in such a way as to prevent him from rationally understanding the proceedings against him or engaging rationally with counsel in the pursuit of his own best interests, he cannot be made to stand trial consistent with due process. Evidence that raises this possibility necessitates an informal inquiry, and if that inquiry reveals that the possibility is substantial, a formal competency trial is required.

B. Procedure

Under our current statutory scheme,29 any “suggestion” of incompetency to stand trial calls for an “informal inquiry” to determine whether evidence exists to justify a formal competency trial.30 In 2009, this Court held that evidence that a “suggestion” of incompetency sufficient to trigger an informal inquiry was the same as the bona fide doubt standard from the previous statutory regime.31 The Legislature has subsequently rejected the bona fide doubt standard for purposes of Article 46B.004, but the amendment by which this was accomplished did not become effective until September 1, 2011, several months after the appellant's trial.32 In any event, here, at least as of May 20, 2011, when voir dire was interrupted for the hearing at which Dr. Almeida testified, the trial court was obviously persuaded that a bona fide doubt did exist as to the appellant's competency.

The question therefore becomes whether, in light of what became known to the trial court by the conclusion of this informal inquiry, it should have conducted a formal competency trial. The answer depends upon whether “some evidence from any source” had arisen by that time “that would support a finding that [the appellant] may be incompetent to stand trial.”33 In making this determination, a trial court must consider only that evidence tending to show incompetency, “putting aside all competing indications of competency, to find whether there is some evidence, a quantity more than none or a scintilla, that rationally may lead to a conclusion of incompetency.”34 If so, then “evidence exists to support a finding of incompetency,” and the statutory scheme requires the trial court to conduct a formal competency trial.35

Should the formal competency trial result in a finding of competency, the trial court is not obliged to revisit the issue later absent a material change of circumstances suggesting that the defendant's mental status has deteriorated.36 However, especially when there has been a suggestion of incompetency but no formal adjudication of the issue, due process requires the trial court to remain ever vigilant for changes in circumstances that would make a formal adjudication appropriate.37 In the instant case, we find no fault in the trial court's failure to conduct a formal competency trial following the initial evaluations by Drs. Gollaher and Axelrad, since they deemed the appellant to be competent. After all, the appellant's trial counsel made no request for a formal competency trial at that time. But as of May 20, 2011, when the trial court concluded its informal inquiry, there was some evidence to support a rational finding of incompetence, and, for the reasons that we describe below, the appellant's request for a formal competency trial should then have been granted.

III. Analysis

Shortly after indictment in April of 2010, and before the appellant was afforded much of an opportunity to interact with Gonzalez, his first-appointed trial counsel, both Dr. Gollaher and Dr. Axelrad deemed him competent to stand trial. The record does not show that the appellant had a history of mental illness. Nevertheless, both of the competency reports reflect the substantial possibility that he was suffering from paranoia that may have been the product of “a paranoid disorder,” and that he was apparently exhibiting delusions. Gollaher expressly found that the appellant had a factual understanding of the proceedings and could “communicate events in an understandable manner and can report his state of mind.” But her report did not speak specifically to whether his condition would adversely affect his capacity either to “engage with counsel in a reasonable and rational manner[,]” or to “engage in a reasoned choice of legal strategies and options[.]”38 Axelrad's report did speak to those capacities and, in fact, he found the appellant to be “mildly impaired” with respect to both. Axelrad noted that, “[i]n the event [that the appellant] has a paranoid disorder, this may be contributing to the problems he is experiencing with his attorney.” Notwithstanding the experts' ultimate conclusions that the appellant was competent, the trial court was effectively put on notice of the need to maintain vigilance to assure that the appellant's due process rights were preserved.

Barely over a month after the initial evaluations, the appellant's attorneys were already experiencing “a little bit of a disconnect” with him. By November of 2010, the appellant had filed a grievance against his lawyers and requested a new “defense team.” In December, Gonzalez's continued representation of the appellant became “untenable” after the appellant threatened him with physical violence over their disagreement with the defense strategy to depose the appellant's children. By April of 2011, it began to emerge that the appellant's displeasure with trial counsel involved more than the depositions alone; he was also upset that trial counsel were not pursuing a sufficiently vigorous investigation into his apparently delusional—and, in any event, clearly irrelevant—claim that the Mayor of Kendleton had sired his youngest child. According to Moncriffe, “He seems to have one train of thought and he disregards all other rational thoughts completely.” The appellant's paranoia had progressed to the point that, if the representations of his own lawyers are to be credited, he believed that they were openly conspiring with the prosecutors to secure his conviction. He flatly refused to communicate with them during the voir dire proceedings.

We think the preceding information constitutes at least some evidence that would support a rational finding that the appellant lacked the capacity to “engage” with his trial counsel rationally or to make rational choices with respect to his legal strategies and options. In finding otherwise at the conclusion of the informal inquiry on May 20, 2011, the trial court made two mistakes. First, the trial court focused erroneously on evidence of competency rather than evidence of incompetency, relying upon the ultimate conclusions of Drs. Gollaher and Axelrad, as well as Dr. Almeida's subsequent opinion that the appellant's cognitive functioning had not significantly changed in the interim. But Almeida was unable to say that the appellant was competent to assist counsel in his defense, and both Gollaher and Axelrad observed signs of paranoid delusions that would at least minimally support a finding that the appellant suffered from a mental disorder that impaired his ability to participate rationally in the preparation and presentation of his defense. The interactions between the appellant and his trial counsel in the intervening months constituted substantial evidence that Axelrad's nascent concerns about the appellant's capacity to consult rationally with his attorneys were subsequently borne out. There was some evidence that would rationally support a finding of incompetency to stand trial, notwithstanding other evidence to the contrary.

Second, the trial court erred to the extent that it denied the appellant's request for a formal competency trial on the grounds that the appellant failed to demonstrate any “change” of status since the earlier findings of competency by Gollaher and Axelrad. There was no adjudication of the competency issue in the summer of 2010 following their evaluations—not even an informal inquiry to decide whether there was sufficient evidence at that time to invoke a formal competency trial. Thus, there was no prior judicial competency determination to justify a requirement of a change in circumstances. Moreover, even had there been some previous judicial finding of competency, the trial court was mistaken to conclude that no new circumstances existed to merit a second look. By May of 2011, there had arisen new evidence in the form of the appellant's obviously irrational belief that his ongoing delusion with respect to the Mayor of Kendleton somehow provided him with a defense to prosecution for capital murder that was preferable to the approach that his trial lawyers urged him to pursue. That the appellant persisted in this delusion-fueled belief against the emphatic advice of counsel, together with the earlier suggestions that he suffered from a paranoid disorder, was enough to raise the likelihood of incompetency to a level beyond that which is evinced by a mere dispute between an ordinarily obstinate defendant and his legal counsel over plausible trial strategies. It is at least some evidence to support a rational finding that, because of mental illness, the appellant was unable to engage rationally with his lawyers and was therefore incapable of participating rationally in his own defense.39 Most critically, he may well have been incapable of making a rational, non-delusional decision with respect to whether or not to accept his trial counsel's advice not to testify.40

We hasten to emphasize the limited scope of our holding today. This is not a case in which there is some evidence of mental illness but no evidence from which it may reasonably be inferred that the defendant's mental illness renders him incapable of consulting rationally with counsel. Nor is it a case in which there is some evidence that the defendant obstinately refuses to cooperate with counsel but nothing from which to rationally infer that his obstinacy is fueled by mental illness. It is not even a case in which there is some evidence of mental illness, some evidence of obstinacy, but ultimately no rational basis to infer that the obstinacy is a product of the mental illness. None of these scenarios would compel a formal competency trial. Instead, this case presents one of the relatively rare instances in which there is at least some evidence from which it may rationally be inferred not only 1) that the defendant suffers some degree of debilitating mental illness, and that 2) he obstinately refuses to cooperate with counsel to his own apparent detriment, but also that 3) his mental illness is what fuels his obstinacy. Whenever a trial court's informal inquiry establishes that there is some evidence that could rationally support all three of these inferences, it should conduct a formal competency trial.

Therefore, bearing firmly in mind that the standard for requiring a formal competency trial is not a particularly onerous one—whether, putting aside the evidence of competency, there is more than a scintilla of evidence that would support a rational finding of fact that the accused is incompetent to stand trial41 —we hold that the trial court erred in failing to grant the appellant's request for a formal competency trial under Article 46B.005.


Accordingly, we sustain the appellant's ninth point of error, abate the appeal, and remand the cause to the trial court. On remand, the trial court shall first determine whether it is presently feasible to conduct a retrospective competency trial, given the passage of time, availability of evidence, and any other pertinent considerations.42 Should the trial court deem a retrospective competency trial to be feasible, it shall proceed to conduct such a trial in accordance with Chapter 46B, Subchapter C, of the Code of Criminal Procedure.43 Regardless of whether the trial court deems a retrospective competency trial to be feasible, the record of the proceedings on remand shall then be returned to this Court for reinstatement of the appeal.44

Appellant, who has no history of mental illness, understands what he is accused of and the nature of the proceedings, and he understands who his attorneys are and that they are tasked with representing him. His refusal to cooperate with his attorneys does not, in my view, make him incompetent to stand trial. The Court maintains, however, that there is some evidence that appellant is incompetent to stand trial as a result of paranoid delusions about his attorneys' motives and other aspects of the case. I disagree.

Under our statute a person is incompetent to stand trial if he 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.1

No one disputes appellant's competence under part (2); that is, no one suggests that he lacks a rational as well as factual understanding of the proceedings against him. The issue before us is his competence under part (1), whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.

The trial court had before it three types of evidence relevant to this determination: (1) expert evaluations, (2) statements by appellant's attorneys, and (3) appellant's own statements. None of this evidence shows that appellant lacked the sufficient present ability to consult with his attorneys with a reasonable degree of rational understanding.

A. The Experts

Appellant was first evaluated by Dr. Karen Gollaher in May of 2010. He largely cooperated with the competency evaluation but would not discuss his actual actions at the time of the crime in order to protect his Fifth Amendment rights. Although appellant reported some possible paranoid thoughts, Dr. Gollaher concluded that “these do not undermine his ability to participate in the court procedures.” With respect to competence to stand trial, Dr. Gollaher found:

Mr. Turner knows the charge against him and a possible punishment. He understands the role of various courtroom person[ne]l, the available pleas and the plea bargaining process․ [H]e was concerned that his version of events was heard by the public and he discussed issues that might be considered mitigating. This suggests that he does have an interest in defending himself and may not be as indifferent as he presents himself to be. He is capable of communicating events in an understandable manner and can report his state of mind.

Dr. Gollaher ultimately concluded that, within a reasonable degree of certainty, appellant was currently competent to stand trial.

In June of 2010, appellant was evaluated by Dr. David Axelrad. Dr. Axelrad said that appellant “may have a mental illness and the diagnosis may be a paranoid disorder” but that appellant was unwilling to disclose the nature of the relationship with his wife immediately preceding the commission of the murders. Though appellant might benefit from psychiatric medications (which he was refusing to take), Dr. Axelrad nevertheless concluded that appellant “is presently mentally competent to stand trial.”

In April of 2011, appellant was referred by his attorneys to Dr. Shawanda Williams–Anderson. She concluded, “Because of the seriousness of Mr. Turner's charges, his unwillingness to participate in his defense, and his extreme distrust of every member of his team his competency to stand trial is questionable.” She further stated that appellant is “making dire decisions that are detrimental to his defense and has understanding of doing so. Thus his mental capacity to stand trial is not the source of contention, but his ability to participate in the legal process was closely evaluated.” She concluded that, “To date, his participation and involvement have had adversarial effects and hindered the defense team in every way. Therefore, Mr. Turner cannot be expected to comply with his team during the progression of his defense including trial. Under Article 46B, Mr. Turner's actions would deem him incompetent to stand trial.”

Essentially, Dr. Williams–Anderson conceded that appellant had the mental capacity to stand trial but concluded that appellant distrusted the defense team and was acting in a way detrimental to his defense. But Dr. Williams–Anderson's focus on appellant's motives and actions is beside the point. Appellant had the mental capacity to work with the members of his defense team but chose not to work with them because he distrusted them. Dr. Williams–Anderson's conclusion that appellant's “actions would deem him incompetent to stand trial” is faulty because a person's actions can never render him incompetent to stand trial. It is the person's mental ability that matters.

Finally, at the urging of defense counsel, the trial court appointed Dr. M. Connie Almeida to evaluate appellant in May of 2011. Dr. Almeida said that she could not reach a professional opinion regarding appellant's competency to stand trial based on her interview “because of his limited cooperation.” However, based on her review of records, interview with jail staff, and her limited interview with appellant, it was her professional opinion that appellant's “functioning has not changed significantly since his previous assessments of competency” by Dr. Gollaher and Dr. Axelrad. “It is my opinion,” she stated “that there have been no significant changes in Mr. Turner's emotional or cognitive functioning since the time of these evaluations (6/1/10 and 6/18/10) that would adversely impact his competency to stand trial at the present time.” When questioned at a hearing, Dr. Almeida stated that she could not definitively say that he was not paranoid and that such condition was not interfering with his ability to rationally assist his defense. But she also affirmed, “There is no current evidence to substantiate a delusional or other psychiatric disorder.”

B. The Attorneys

Attorneys Tyrone Moncriffe and Patrick McCann executed affidavits, but these affidavits were not directly introduced into evidence before the trial court. Some of the content of these affidavits was introduced through Dr. Almeida's testimony. Dr. Almeida summarized these affidavits as expressing the concern that appellant was accusing counsel of coercion, hiding and misusing information, and not representing appellant's best interests. Counsel elicited testimony from Dr. Almeida that appellant actually believed that the defense attorneys were coercing appellant's children into testifying against him and that McCann was part of a secret society that desired appellant's conviction. Dr. Almeida also recalled that Moncriffe had “indicated several instances of delusional comments and thinking.” It was partly based upon these affidavits that Dr. Almeida said that she could not definitively say that appellant did not have a paranoid condition that was interfering with his ability to assist his defense. But even considering those affidavits, Dr. Almeida nevertheless testified that appellant's condition had not changed from the prior interviews and that there was no current evidence to substantiate a delusional or other psychiatric disorder.

At the conclusion of the hearing, McCann argued that appellant's paranoia had impaired the defense because appellant was refusing to discuss any of the jurors with counsel during voir dire. McCann conceded that “examinations in the year prior,” by Dr. Gollaher and Dr. Axelrad, “although they showed some of the problem, did not at that time rise to the level, in their opinion of incompetency.” But McCann said, “I can tell you that it has materially changed over the last several months, perhaps only because of the proximity of the actual case that's brought this out, but it has—it has brought us to a complete standstill in our ability to determine or advise Mr. Turner about whether to testify or whether to assist in any of this.” At that point, the prosecutor interjected, “I don't—I don't mind him arguing, but I've got to be able—to be able to cross-examine somebody if he's going to give you new evidence, Judge.” McCann responded, “He's right. He's right, and I'll rephrase that. The Court has watched Mr. Moncriffe and myself struggle with what appeared at first to us to be a recalcitrant client and it has—has clearly, to us, gotten beyond that.”

McCann remarked that, “I've never been in a place where the client has withdrawn to this degree.” McCann stated that he believed there had been a change, though perhaps not witnessed by the jail, but a noticeable change in appellant's demeanor and behavior over the last several months. McCann urged the trial court “to give us a chance to sit there and flesh this out during a competency trial, and even if necessary, to appoint Mr. Turner other counsel and allow Mr. Moncriffe and I to testify and subject us to cross.”

I believe an attorney's statements about his client's mental state can, in appropriate circumstances, raise an issue of incompetency without regard to expert testimony. But sometimes an attorney's observations, especially with respect to delusions, are not alone a sufficient basis for concluding that a defendant is incompetent.2 Regardless, in the present case, the defense attorneys specifically refrained from relying upon their own recollections as evidence. Their affidavits were not introduced into evidence and were addressed only as part of the basis for Dr. Almeida's opinions. But as explained above, Dr. Almeida ultimately concluded, despite these affidavits, that there was no current evidence to substantiate a delusional or other psychiatric disorder. And in making statements to the trial court, McCann refrained from framing those statements as testimony, which would have subjected him to cross-examination. Instead, he invited the trial court to rely upon its own observations.

Pointedly, the trial court articulated its own observations, concluding that there was no evidence of incompetency, as follows:

I have watched Mr. Turner throughout these several weeks that we've been going through the jury selection. He has been paying attention; he has been reacting. Your comment this afternoon about suspicion had a definite reaction from Mr. Turner, so he's paying attention. He knows what's going on. The fact that he will not talk to you, while that makes defense counsel's representation difficult, it doesn't rise to the level of incompetency. The evidence just doesn't show that. And the case cited by the prosecution in this case recognizes that behavior alone doesn't meet the requirements. It's one part of a whole matter that has to be looked at. I wanted to hear evidence that would lead us to a full hearing, but I have not heard that; therefore, I'm denying it.

Even if the attorneys' observations were taken as evidence, those observations do not indicate that appellant was incapable of consulting with his attorneys with a reasonable degree of rational understanding. They show merely that he was unwilling to do so. No one disputes that appellant understood what the proceedings were about and that he was mentally able to consult with the attorneys if he so desired. That he lacked the desire to do so is not evidence of incompetence. And to the extent appellant's lack of cooperation escalated, this was based on the fact that the attorneys progressively engaged in tactics with which appellant disagreed, e.g. deposing appellant's children, and by the fact that the trial date loomed ever closer, both of which are at least somewhat rational explanations for appellant's uncooperative behavior.

C. Appellant's Testimony

Appellant testified at trial that he did not commit the murders and that he was not even present at the time. He also testified that his wife had been having an affair with the mayor and that the mayor had been threatening him. He claimed that his children were coerced into making statements against him. He disagreed with his attorneys' decision to allow his children to participate in depositions, and he disagreed with his attorneys' strategy to admit in opening statement that he killed his wife. Appellant also made statements that indicated he believed the defense attorney and the prosecutor were suppressing evidence and conspiring to convict him.

On redirect, McCann asked appellant, “Mr. Turner, in your mind, all that drivel was true, wasn't it?” Appellant responded, “It is true.”

On cross, the prosecutor asked, “Do you understand your attorney just said that you're lying, that it's drivel?” Appellant responded, “He's been saying this and trying to pretend. He went out and got a—tried to get a doctor to rule me incompetent. And the reason that he was trying to do that ․ 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.”

Appellant would not be the first guilty defendant to refuse to cooperate with his attorneys. Despite overwhelming evidence showing that he intentionally killed two people, appellant wanted an acquittal. He concocted a far-fetched story to attempt to show his innocence. It might not be an exaggeration to say that his position was extremely shortsighted and wrongheaded, but that does not make him incompetent. His attorneys refused to go along with appellant's desired strategy. While I don't fault them for that, it is understandable that appellant would. The attorney-client relationship had deteriorated to the point that his own attorney was calling his testimony “drivel.” It is not difficult to see why appellant is upset with them. Appellant has been an extraordinarily difficult client who seems to have made bad choices about trial strategy. But bad choices are not the same as irrational choices, except in the loosest, non-legal sense. To the extent that the Court conflates the two, I believe that it errs.

The trial court was within its discretion to find, after the testimony of three expert witnesses, that appellant had not established a right to a full hearing.

I respectfully dissent.

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PRICE, J., delivered the opinion of the Court in which WOMACK, JOHNSON, COCHRAN, and ALCALA, JJ., joined.

KELLER, P.J., filed a dissenting opinion in which MEYERS, KEASLER, and HERVEY, JJ., joined.

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