Green, Jonathan Marcus

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Jonathan Marcus GREEN, Appellant, v. The STATE of Texas.

Nos. AP-76,374, AP-76,376, AP-76,381.

Court of Criminal Appeals of Texas.

June 27, 2012.

Rehearing Denied Aug. 22, 2012.

374 S.W.3d 434

WOMACK, J.

ready firmly resolved the issue of the authoritativeness of our construction of the present incarnation of Rule 43.2(c), identifying Judge Keasler‘s reasoned position as controlling and stare decisis. The only thing that has changed since that time is “the composition of this Court, which is not a valid reason for ignoring stare decisis principles.”¹²

I would honor stare decisis and affirm the judgment of the court of appeals. Because the Court does not, I respectfully dissent.

James Rytting, Houston, for Appellant.

Marc Brumberger, Asst. D.A., Conroe, Lisa C. McMinn, State‘s Attorney, Austin, for State.

WOMACK, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The appellant has been convicted of capital murder and sentenced to death. Shortly before the scheduled execution of the sentence on June 30, 2010, he applied for a writ of habeas corpus on the ground that he was incompetent to be executed. After the trial court held a hearing and found him competent, we stayed his execution to review the trial court‘s determination.

Having reviewed the three matters the appellant brought to us, we shall lift the stay of execution. First, we hold that Article 46.05 of the Code of Criminal Procedure provides an adequate remedy for claims of incompetence to be executed, which leads us to dismiss the appellant‘s application for a writ of habeas corpus (AP-76,376). Second, we hold that the district court applied the correct legal standard and was within its discretion to find the appellant competent; therefore, we affirm the court in AP-76,374. Finally, we dismiss the appellant‘s appeal from the denial of his motion to recuse the trial judge (AP-76,381) because it is not properly before this court.

I. BACKGROUND

The appellant was convicted of capital murder¹ and sentenced to death in 2002. The facts of the offense are summarized in our opinion on his direct appeal.² After the appellant exhausted all state and federal appeals and writs of habeas corpus, his execution was scheduled for June 30, 2010. On June 23, the appellant filed his first subsequent application for a writ of habeas corpus, alleging that he was incompetent to be executed and requesting an Article 46.05 hearing to determine his competency.³

On June 28, the District Court held a competency hearing. The appellant first called Dr. Diane Mosnik, an assistant professor of psychiatry and neurology, who testified that, based on her examination of the appellant, she believed he was incompetent to be executed. Acknowledging the standard for competence established in the United States Supreme Court‘s decision in Panetti v. Quarterman,⁴ Dr. Mosnik testified that she believed the appellant was “aware that the State has scheduled him to be executed, but he is not aware that he is responsible for a crime for which he‘s being executed.” On cross-examination, the State asked Dr. Mosnik about her credentials. She testified that she had testified as a mental-health expert in criminal cases “[a]bout five times.” Each time she had been hired by the defense, and each time she had testified that the defendant was incompetent.

The appellant then testified. He said that various “personalities or things” and “demons” lived inside of him and controlled some of his actions. He stated his belief that he was “locked up for no reason, accused of killing someone that [he] never killed.” He further testified that he did not receive a fair trial, referencing by name the trial judge, his trial attorney, and witnesses. On cross-examination, the appellant testified that he understood that he had an execution date set. He explained his sentence by saying the jury “assumed” that execution was the appropriate sentence in his case.

The State‘s only witness was a psychiatrist, Dr. Mark Moeller. He told the court that he had testified as a mental-health expert before, and he had found some defendants competent to be executed and others to be incompetent. He said that, based on his two meetings with the appellant, he disagreed with Dr. Mosnik‘s conclusion. Dr. Moeller said that the appellant exhibited signs of “symptom magnification“: the intentional exaggeration of symptoms in an effort to achieve secondary gain. Dr. Moeller found that the appellant was competent to be executed based on Panetti‘s “requirements.” Specifically, it was his professional opinion that the appellant had the capacity to understand rationally the connection between his conviction and his death sentence.

The trial court concluded that the appellant was sufficiently competent:

I‘m going to find that, based on all the evidence, that you appear to understand the reason for imminent execution; but for the record, I‘m going to state that the most compelling evidence of all was from your own expert which shows that you know you are to be executed by the State, you know you are convicted of killing the victim, Christina Neal, you know the execution date, and then you proclaimed your innocence which shows a rational understanding of your imminent date and you know the charges that were against you.

You knew the names of appellate counsel, the name of your trial counsel, name of your current attorney, you knew your first, second, and third attorneys on this case. You knew that you had the right to have trial counsel and appellate counsel, and I further find that you appreciated the adversarial nature of the trial and proceedings. Therefore, I find that you are not incompetent and I will not grant a stay of execution and that‘s my ruling. . . .

Let me state on the record that I talked about the three different types of subsequent writs just to show that I had read the statute, that I had an understanding of the statute, and that I knew that we were here on the incompetence claim. I did listen to both sides. I did follow the Panetti standard and I did also apply the Ford standard in this case. And after applying all of those standards, it‘s my ruling that I am not granting the stay in this case.

The appellant appealed the trial court‘s determination, which was forwarded to this court for our review pursuant to Article 46.05.

The appellant also applied for a writ of habeas corpus challenging the trial court‘s ruling, accompanied by a brief arguing that competency-to-be-executed claims are cognizable on habeas corpus. In light of questions about the standard used by the trial court in concluding that the appellant was competent, we stayed the appellant‘s execution and ordered the trial judge to file with us a written clarification of the standard she used.⁵

II. COGNIZABLE ON HABEAS

We first address the appellant‘s contention that competency-to-be-executed claims are cognizable on a writ of habeas corpus.

Article 46.05 of the Code of Criminal Procedure states, “A person who is incompetent to be executed may not be executed.”⁶ The article defines incompetency and provides procedures for a competency-to-be-executed hearing in the trial court⁷ and for review in this court.⁸

While recognizing the general rule that the writ of habeas corpus should not be used to litigate matters that should have been raised on direct appeal,⁹ the appellant argues that competency-to-be-executed claims should be excepted from this rule. He groups his arguments under two headings. First, he argues that competency-to-be-executed claims are cognizable based on the plain language of Article 11.071. Second, he argues that Article 46.05 denies procedural due process, and therefore Article 46.05‘s provision regarding our review of competency determinations is not instructive.

In response, the State argues that the legislative history of Article 46.05 makes clear that is it the “exclusive avenue” by which to review a trial court‘s determination of a defendant‘s competency to be executed.

A. Plain Language of Article 11.071

In arguing that the plain language of Article 11.071 makes competency-to-be-executed claims cognizable on a writ of habeas corpus, the appellant first cites to our statement in Ex parte Smith that “Article 11.071 now contains the exclusive procedures for the exercise of this Court‘s original habeas corpus jurisdiction in death penalty cases.”¹⁰ Article 11.071 states:

Notwithstanding any other provision of this chapter, this article establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death.¹¹

The appellant then cites our holding in Ex parte Alba that Article 11.071 was not the proper vehicle for raising a claim where “the relief sought would not foreclose execution, and the claim does not challenge the sentence of death or seek to establish unlawfulness that would render the conviction or sentence invalid.”¹² He argues that a finding of incompetency would provide “immediate relief,” thus making an incompetency claim cognizable on a writ of habeas corpus.

The appellant seems to find in Article 11.071 a statement of which claims related to the death penalty are cognizable on habeas corpus. We do not. By our reading, Article 11.071—and, by extension, our opinion in Smith—merely states the procedures that must be followed for habeas corpus claims by an applicant who seeks relief from a judgment imposing a penalty of death. It says nothing about the substance of claims that are cognizable on a writ of habeas corpus.

We do not read Alba as supporting a determination that competency-to-be-executed claims are cognizable under Article 11.071. A finding of incompetency results in only a stay during the defendant‘s incompetence;¹³ it would not render the appellant‘s sentence invalid.

Neither the plain language of Article 11.071 nor our decisions in Smith and Alba establish competency-to-be-executed claims as cognizable on a writ of habeas corpus. Because Article 46.05 provides the appellant with all of the process that is due to him, we see no reason to depart from the well-established principle that a writ of habeas corpus is not a substitute for a direct appeal.

B. Article 46.05‘s Constitutionality

The appellant next argues that Article 46.05 denies due process. He relies on the Supreme Court‘s decision in Panetti v. Quarterman,¹⁴ arguing that the Court held in that case that Article 46.05‘s procedures were “constitutionally inadequate.” Specifically, the appellant finds fault with Article 46.05‘s failure to “require that either of the appointed mental-health experts serve as a defense expert,” as well as its lack of a “guarantee that the inmate will have access to a competent defense expert who will help him or her prepare and present a defense.”

We do not find any constitutional infirmities lurking within Article 46.05. Contrary to the appellant‘s assertions, the Supreme Court in Panetti did not determine that Article 46.05 offered constitutionally inadequate protection to defendants asserting their incompetency.¹⁵ Rather, the Panetti court decided only that the trial judge in that specific case had provided inadequate protection to the defendant.¹⁶ Indeed, the Supreme Court noted that there was a strong argument that the trial judge had violated Article 46.05 as well.¹⁷

The appellant cites Wood v. Quarterman, 572 F.Supp.2d 814, 817 (W.D.Tex.2008), in which a federal district court criticized Article 46.05 for failing to provide an inmate with counsel or expert assistance. The obvious distinction between that case and the one now before us is that this applicant was provided with counsel and expert assistance.

The relevant portion of Panetti mandates that only after a defendant has made the requisite threshold showing of incompetence must he be provided with: 1) a constitutionally adequate opportunity to be heard,¹⁹ and 2) an “adequate opportunity to submit expert evidence in response.”²⁰ Article 46.05 does not infringe upon either of these rights.

C. Conclusion

Article 46.05 of the Code of Criminal Procedure provides for the direct review of a trial court‘s determination of a defendant‘s competency to be executed. The writ of habeas corpus should not be used to litigate matters that should have been raised on direct appeal, and we do not find any reason to except competency-to-be-executed claims from this well-established principle.

III. DIRECT APPEAL OF COMPETENCY DETERMINATION

Before deciding the merits of the appellant‘s direct appeal from the trial court‘s Article 46.05 determination, we must first determine which appellate standard we should use, as well as whether the standard to be used by the trial court has changed as a result of recent Supreme Court Court decisions.

A. Applicable Appellate Standard

On motion from a party, Article 46.05 requires that a trial court‘s determination of a defendant‘s competency to be executed be sent to this Court for review.²¹ It does not, however, instruct us on what standard to use when reviewing the trial court‘s determination, nor have we addressed the issue since the article‘s enactment.

In our opinion in Guzman v. State, we explained the standards of review used by our court:

As a general rule, the appellate courts, should afford almost total deference to a trial court‘s determination of the historical facts that the record supports especially when the trial court‘s fact findings are based on an evaluation of credibility and demeanor.

The appellate courts should afford the same amount of deference to trial courts’ rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.

The appellate courts may review de novo “mixed questions of law and fact” not falling within this category. . . . An abuse of discretion standard does not necessarily apply to “application of law to fact questions” whose resolution does not turn on an evaluation of credibility and demeanor.²²

We believe that a trial court‘s competency determination is, if not wholly a factual determination, at least a mixed question of law and fact based on credibility and demeanor. This conclusion would necessitate a highly deferential standard of review. Corroborating this conclusion are the opinions of other appellate courts—state²³ and federal²⁴—that have adopted an abuse-of-discretion standard in reviewing competency-to-be-executed findings.

In accordance with the opinions of the federal courts, other state courts, and our own guidelines as to standards of review, we believe that the appropriate standard to review a trial court‘s finding of a defendant‘s competency to be executed is whether the trial court abused its discretion. We shall reverse the judgment only if it is outside the zone of reasonable disagreement.²⁵ We shall sustain the trial court‘s ruling if it is supported by the record and is correct on any theory of law applicable to the case.²⁶

B. Trial Court Standard

In Ford v. Wainwright, the United States Supreme Court drew on long-established principles of the common law to hold that the Eighth Amendment prohibits execution of the insane.²⁷ In Ford, Justice Powell stated in a concurrence to the four-justice plurality opinion that prisoners are insane for the purposes of execution if they are “unaware of the punishment they are about to suffer and why they are to suffer it.”²⁸ Justice Powell also opined that a state may, consistent with due process, presume a prisoner who was competent to stand trial is sane at the time of execution, and “may require a substantial threshold showing of insanity merely to trigger the hearing process.”²⁹ Because there was no majority opinion, Justice Powell‘s concurrence became the controlling opinion in Ford and “constitutes ‘clearly established’ law.”³⁰

Although Ford identified some of the components necessary to demonstrate a constitutionally minimum definition of insanity, the application of Ford presents challenges because the Court neither defined insanity nor mandated procedures for courts to follow in determining whether the defendant is insane. Instead, the Court left those tasks to the states.

The Court‘s Ford opinion was largely codified in Article 46.05 of the Texas Code of Criminal Procedure, which was enacted in 1999. It provides, in pertinent part:

(a) A person who is incompetent to be executed may not be executed.

. . . .

(h) A defendant is incompetent to be executed if the defendant does not understand:

(1) that he or she is to be executed and that the execution is imminent; and

(2) the reason he or she is being executed.³¹

Additionally, article 46.05 makes clear that the petitioner bears the burden of proving, by a preponderance of the evidence, that he is incompetent.³²

In 2007, the United States Supreme Court revisited the issue of competency to be executed in Panetti v. Quarterman, in which it addressed Ford‘s competency-for-execution and “substantial threshold showing” standards.³³ In Panetti, the federal district court denied the petitioner‘s incompetency claim, saying that “the Fifth Circuit test for competency to be executed requires the petitioner know no more than the fact of his impending execution and the factual predicate for the execution.”³⁴ The Court of Appeals affirmed.³⁵ The Supreme Court, however, held that the lower courts “unreasonably applied federal law clearly established by Ford,” stating that “the Court of Appeals’ standard [was] too restrictive to afford a prisoner the protections granted by the Eighth Amend-ment.”³⁶ The Court concluded:

A prisoner‘s awareness of the State‘s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. . . . It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.³⁷

No relevant changes to Article 46.05 were made after Panetti.³⁸

In following Panetti, courts have disagreed as to whether it imposed an additional requirement on courts in determining competency,³⁹ or whether it merely reiterated the established requirements of Ford.⁴⁰ The latter is the majority view, and we are inclined to agree. Our reading of Panetti does not find a mandate regarding how to weigh any particular evidence; instead, we read Panetti as instructing that evidence of delusions may not, categorically, be deemed irrelevant. Therefore, we hold that Panetti merely clarifies the Ford standard for determining whether an inmate is competent to be executed. Accordingly, the Code of Criminal Procedure‘s Article 46.05 standard for reviewing the competency of inmates to be executed, which is a codification of Ford, remains constitutionally adequate in the wake of Panetti.

C. Application

Having determined the appropriate appellate and trial court standards, we now must decide whether the trial court used the correct standard and whether the trial court abused its discretion in ruling that the appellant was competent to stand trial.

1. Trial Court Standard

In the instant case, the trial judge, after announcing that she had considered the standards of Ford, Panetti, and Article 46.05, declared that she found the appellant to be competent under the Article 46.05 standard. She found that the appellant “appears to understand the reason for imminent execution,” and that the appellant possessed a “rational understanding of[his] imminent date [of execution].”⁴¹ This was the Article 46.05 standard which meets the constitutional standards determined by the Supreme Court‘s opinions in Ford and Panetti. The trial court here used the correct standard.

2. Abuse of Discretion

We next look to the record to determine whether the trial court abused its discretion in applying Article 46.05.

At the competency hearing, the defense presented two witnesses: a psychologist and the appellant. The psychiatrist testified that the appellant was aware he was scheduled to be executed, but not because he had committed a crime. She therefore concluded that he was incompetent to be executed. The appellant testified as to various delusions he suffered, but he also testified as to his innocence of the crime for which he was convicted, as well as various injustices that he suffered at his trial.

The State‘s only witness, a psychiatrist, testified that he believed the appellant was magnifying his symptoms in order to achieve secondary gain. He testified that the appellant was competent to be executed under Panetti, because the appellant “clearly understands what happened in 2002, that he was convicted. He knows why he‘s on death row.”

The record contains evidence that would support a finding of competency or incompetency. According to the trial court, though, some of the strongest evidence to support a finding of competency came from the appellant‘s expert herself. Additionally, the appellant‘s testimony, in which he gave his opinion of his trial and proclaimed his innocence of the murder of which he was convicted, indicated an understanding of the reason he is to be executed. There is sufficient evidence here to support the trial court‘s ruling; we cannot find that its determination was outside the zone of reasonable disagreement. We therefore overrule the appellant‘s claim of error, and hold that trial court did not abuse its discretion in finding him competent to be executed.

IV. RECUSAL

Finally, we address the presiding judge‘s decision to deny the appellant‘s motion to recuse the trial judge.

At the conclusion of the appellant‘s competency hearing on June 28, 2010, the trial judge determined that the appellant was competent to be executed. The State then prepared and delivered to the trial judge proposed findings of facts and conclusions of law, which the trial judge adopted. On July 2, the appellant, feeling that this “ex parte contact between the State and the [trial judge]” was inappropriate, filed a motion to recuse the trial judge. On July 6, the next business day, the trial judge referred the recusal motion to the regional presiding judge, who scheduled a hearing on the recusal motion for July 12. The trial judge did not attend the hearing. The appellant requested a continuance so that the trial judge could attend and give testimony, but the regional presiding judge denied the appellant‘s request, reasoning that the trial judge‘s testimony was not required because prosecutors were available to testify to their exchange with the trial judge. Upon the conclusion of the hearing, the regional presiding judge declined to recuse the trial judge.

On July 19, nearly three weeks after the record of the Article 46.05 hearing was forwarded to this court, and four days after the appellant and the State filed briefs in this court regarding the Article 46.05 hearing, the appellant filed with the district clerk a notice of appeal. The appellant styled the notice “In re Michalk,” using the last name of the trial judge. The appellant labeled the notice with the trial-court cause number that was assigned to the Article 46.05 hearing, and stated in the notice, “The final judgment or order to which [the presiding judge‘s] ruling is related is the June 28, 2010, order of [the trial judge] denying [the appellant‘s] motion under Article 46.05 . . . and the July 14, 2010, clarification of that order filed by [the trial judge].”

There are multiple reasons why we do not believe this motion is properly before us. First, and most fundamentally, we do not believe that, given the peculiar posture of an Article 46.05 hearing and appeal, a motion to recuse the trial judge made while the proceedings are on appeal can influence that appeal.

Recusal is governed by Rule of Civil Procedure 18a.⁴² Under that rule, if a recusal motion is granted (either by the trial judge herself, or by the regional presiding judge who conducts the recusal hearing), the result is that the case is transferred to another court or judge.⁴³ In an Article 46.05 proceeding, however, once the case is forwarded to this Court on appeal, the trial court‘s powers in the matter are limited to actions based on our judgment.⁴⁴ The terms of the statute give the trial court no continuing authority over the merits of the proceeding. Even if the regional presiding judge had determined that the trial judge should have been recused, that determination would not alter the proceedings that have already occurred, and therefore would not affect our appellate review.⁴⁵

In his motions before the trial court, the appellant specifically sought to have the trial judge “recused” from answering our June 30 order, which required her to file a clarification of the determinations she made at the June 28 hearing. But we did not order the trial judge to conduct additional proceedings or to make additional determinations; we only asked her to make “a written clarification of the standard she followed in making her determination . . . .”⁴⁶ Neither she nor the regional presiding judge had the authority to ignore or alter our order that she explain her personal thought process.

Additionally, an appeal of the regional presiding judge‘s decision, standing alone, would be improper. An order denying a motion to recuse “may be reviewed for abuse of discretion on appeal from the final judgment.”⁴⁷ Our sister court has, for decades, interpreted a final judgment as one that disposes of all issues and par-ties in a case.⁴⁸ In the instant case, then, the order denying the motion to recuse could be reviewed only on appeal from the final judgment determining the appellant competent to be executed. Because the appellant instead filed an appeal of the order denying his motion to recuse the trial judge, we must dismiss the appeal for want of jurisdiction.⁴⁹ This holding does not prejudice the right of Article 46.05 appellants with meritorious due-process claims that become apparent only after the case was forwarded to our Court to file with us an original application for a writ of habeas corpus invoking our powers under Article V of the Texas Constitution.⁵⁰

Even if this appeal were properly before us, from the facts presented in the record it does not appear that the regional presiding judge abused his discretion in denying the appellant‘s motion to recuse the trial judge. A trial judge must be recused if a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial judge.⁵¹ We review a denied motion to recuse for abuse of discretion,⁵² and we will not reverse the trial judge‘s decision so long as the ruling was within the zone of reasonable disagreement.⁵³ The appellant cites no reported authority to support his first complaint—that the presiding judge erred in declining to continue the hearing until the trial judge could attend. His second complaint—that the trial judge ex parte solicited and adopted verbatim the State‘s findings of fact—has not been determined to be unlawful by our court or the United States Supreme Court.⁵⁴

The presiding judge was within his discretion in declining to recuse the trial judge.

V. CONCLUSION

Competency-to-be-executed claims are not cognizable on a writ of habeas corpus. They are, however, subject to direct review, under Article 46.05 of the Code of Criminal Procedure. In the instant case, the trial court used the correct standard in examining the appellant‘s competency, and it did not abuse its discretion in finding that he was competent. The appellant‘s direct appeal of the denial of his motion to recuse the trial judge is improperly before us. It does not appear that the regional presiding judge abused his discretion in denying the appellant‘s motion to recuse the trial judge. We lift the appellant‘s stay of execution.

PRICE, J., filed a concurring opinion in which JOHNSON and ALCALA, JJ., joined.

PRICE, J., concurring in which JOHNSON and ALCALA, JJ., joined.

This Court has no responsibility more awesome than its duty to say what the law is with respect to the implementation of capital punishment. Few cases we have seen this term match the importance of these consolidated cases, which call upon us to decide how the Texas Legislature intended that the Eighth Amendment issue of the competency of a condemned inmate to be executed should properly be determined. In its opinion today, however, I fear that the Court has inadvertently thwarted the legislative intent, essentially making law rather than accurately construing it. If I am wrong about this, then, of course, the Legislature can simply leave the statute on the books as it currently stands. But if I am right that the Court has misjudged the legislative intent, I urge the Legislature to amend the statute in such a way as to make what was its original intent unmistakable, as it did several years back with respect to the post-conviction DNA statute.¹

All three of these cause numbers relate in one way or another to Green‘s motion, under Article 46.05 of the Texas Code of Criminal Procedure, for a determination of his competency to be executed.² Our Cause No. AP-76,374 is the review of the trial court proceedings that is currently permitted, on motion of the losing party below, by Section (l) of Article 46.05.³ Cause No. AP-76,376 is a separate habeas corpus application by which Green is also attempting to raise the issue of his competency to be executed. Finally, Cause No. AP-76,381 is a purported appeal from an order, entered after the record of the competency hearing had already been forwarded to us, refusing to recuse the trial court judge from further participation in the competency proceedings.

I. CAUSE NO. 76,374: THE ARTICLE 46.05 REVIEW

Green timely filed his motion to have competency determined under the statute—that is to say, he filed it sufficiently early that this Court is not foreclosed from reviewing the trial court‘s ruling thereon.⁴ An evidentiary hearing was not held on that motion until two days before the originally scheduled execution date. There, evidence was presented that would support either a finding that the appellant was competent or a finding that he was not. Not surprisingly, the appellant‘s expert and the State‘s expert were not in agreement. The convicting court found the State‘s expert to be more qualified and more credible. Unfortunately, Article 46.05 does not clearly identify a standard by which this Court is to conduct its “review” of the convicting court‘s findings under Section (l). The statute says that the convicting court is required to “determine whether . . . the defendant has established by a preponderance of the evidence that the defendant is incompetent to be executed.”⁵ On motion by either party, the record of the hearing is then forwarded posthaste to this Court for its “review and entry of a judgment of whether to adopt the [convicting] court‘s order, findings, or recommendations[.]”⁶ Do we, as would be typical in the context of a direct appeal, give complete deference to the convicting court‘s resolution of questions of pure fact, and of mixed questions of law and fact that depend upon an assessment of the witnesses’ demeanor and credibility, and review de novo only pure questions of law⁷ and mixed questions of law and fact that do not turn on credibility?⁸ Or do we, instead, as I conclude, afford the convicting court‘s findings of fact the kind of qualified but not complete deference that we give in the context of post-conviction habeas corpus review?⁹

Today the Court reasons that the most appropriate standard for our “review” under Article 46.05 is the ordinary, highly deferential appellate standard announced in Guzman. I disagree. The statutory language does not sound like direct-appeal language. According to the statute, we are supposed to “review” the record with an eye toward the “entry of a judgment of whether to adopt the trial court‘s order, findings, or recommendations[.]”¹⁰ This sounds more like the sort of review we conduct of a trial court‘s recommended findings of fact and conclusions of law in post-conviction habeas corpus proceedings. In that context, we are the “ultimate” factfinder, “with the prerogative to reject the convicting court‘s recommendations on those rare occasions when we deem it appropriate, even when they are supported by the record, if we think another disposition is manifestly better supported by the record.”¹¹

Even if the language of Section (l) does not plainly set up such a posture for this Court‘s review, it certainly does not plainly prescribe an ordinary direct appellate posture either. It is, at best, ambiguous. Consulting legislative history, as is appropriate in construing an ambiguous statute,¹² reveals that it was indeed the manifest intent of the drafters of the 2007 amendment to Article 46.05, Section (l), to establish a habeas-like review process. It may be recalled that, as originally enacted in 1999, Article 46.05 permitted our review only of a trial court‘s finding of incompetency to be executed.¹³ The 2007 legislation that subsequently amended Section (l) was intended to “equalize[] the appellate rights for the prosecution and the defense and shift[] the method of court determinations to a process similar to that adopted in habeas corpus proceedings.”¹⁴ Because of the language of Section (l) itself, and the evident legislative purpose behind that language, I believe that the Court makes a mistake in characterizing our 46.05, Section (l), review as an ordinary direct appeal.

Having characterized the “review” under Article 46.05 as a “direct appeal” at the outset, the Court reasons from this premise that an abuse of discretion standard of “appellate” review is the most appropriate because the competency determination will typically boil down to a combination of historical fact finding and resolution of the credibility of (presumably expert) witnesses.¹⁵ Citing cases from other state and federal jurisdictions as examples, the Court observes that the fact-and credibility-bound nature of the inquiry “would necessitate a highly deferential standard of review,” such as an abuse of discretion standard.¹⁶ But this logic relies upon the Court‘s assumption that the trial court is the institutional fact-finder and we are but an ordinary ” appellate” court. That is not what our Legislature has prescribed in Article 46.05, Section (l). None of the extra-jurisdictional cases that the Court cites has a statute like ours.¹⁷ By indicating an intention to implement a habeas-like scheme, the Legislature has made it clear that—at least in cases in which the competency motion is filed twenty days or more before the scheduled execution, and a motion for this Court‘s “review” is made—this Court should serve as the “ultimate” fact-finder. Nothing in our statutory scheme “necessitates” application of the ordinary “highly deferential” appellate standard when this Court has been assigned the ultimate fact-finding duty. It is true that in the habeas corpus context we have said that we will usually defer to the trial court‘s recommended findings and credibility determinations when they are supported by the record, as a matter of comity and because the trial judge was “Johnny-on-the-spot” at the competency hearing. In the final analysis, the evidence of incompetency in this case is not so compelling that I would refuse to pay our ordinary deference to the convicting court‘s recommendation today. But we do not invariably have to, as we do under the appellate abuse of discretion standard that the Court adopts today, and

in the next case that comes along, applying the proper standard could make all the difference. This is not an ordinary direct appeal.

II. CAUSE NO. 76,376: HABEAS CORPUS COGNIZABILITY

Back before either Article 46.05 or Article 11.071 was enacted, this Court entertained any claim of incompetency to be executed under the auspices of Article 11.07, as a post-conviction application for writ of habeas corpus in a felony case. In Ex parte Jordan, a 1988 case, we adopted the recommendation of the convicting court and granted habeas corpus relief on a claim of incompetency to be executed, all the while pleading with the Legislature to enact a statute that would specifically guide trial courts both substantively and procedurally.¹⁸ The Legislature would not act for another ten-plus years, finally passing statutory procedures in 1999.¹⁹ In the meantime, there was never any substantial question raised about the cognizability of the claim in post-conviction habeas corpus

proceedings—if only because there was no other procedure in Texas to implement the constitutional dictates of Ford v. Wainwright.²⁰

Perhaps that has changed in light of Alba and Chi.²¹ In these cases, a plurality of this Court held that a challenge to the constitutionality of Texas‘s lethal injection protocol was not cognizable in post-conviction habeas corpus proceedings because it did not call into question the validity of the conviction or death sentence, but only the particular manner in which the death sentence would be carried out. Today the Court suggests that this same rationale would render a claim of incompetency to be executed non-cognizable—even if Green were found to be incompetent, it would invalidate neither his conviction for capital murder nor his death sentence; it would only delay the latter for the pendency of his incompetence.²² The Court also reasons that, because Article 46.05 now provides a statutory procedure for determining incompetency to be executed, including (since 2007, at least) a provision for our “review” of the trial court‘s determination, he cannot challenge his competency in a post-conviction writ because he has an adequate, statutorily prescribed remedy at law, and “a writ of habeas corpus is not a substitute for a direct appeal.”²³

I agree that it will often, if not usually, be the case that a condemned inmate facing imminent execution with a claim of incompetence will now have an adequate remedy at law via Article 46.05 (though I disagree that the nature of the Article 46.05-authorized “review” is an ordinary “direct appeal“), and I agree that Green‘s is one of those cases. He filed his motion before the twenty-day deadline to assure both that the trial court could make a timely determination of his competency and that this Court would be permitted to review that determination under Section (l). Therefore, I agree with the Court‘s ultimate conclusion that Green himself had an adequate legal remedy under Article 46.05 and need not be permitted also to raise his present claim by way of a habeas corpus proceeding.

Having said that, I must add that I believe that the Court‘s opinion with respect to habeas cognizability may be stated a little too categorically to accommodate every possible future contingency.²⁴ We could encounter mentally ill inmates in the future who genuinely suffer acute mental breakdowns that render them incompetent later than twenty days before the scheduled execution date. Such inmates would be able to obtain a ruling from the trial court under Article 46.05, but that ruling would not be subject to our review.²⁵ They would have some remedy at law, but it could reasonably be debated whether that legal remedy was “adequate” absent this Court‘s review. We might want to leave the door open to an inmate under

these circumstances to seek habeas relief. If Alba and Chi foreclose the possibility of post-conviction habeas corpus relief under Article 11.071, because a claim of incompetency does not challenge the conviction or death sentence, it remains at least arguable that an inmate in this posture should be allowed to seek habeas relief by invoking this Court‘s statutorily unregulated original habeas corpus jurisdiction—just as Judge Cochran suggested in her concurring opinions in Alba and Chi.²⁶ We should take care not to say anything now in Cause No. 76,374 that would prevent us from at least entertaining such an argument if and when the time comes.²⁷

III. CAUSE NO. 76,381: REVIEW OF THE RECUSAL MOTION

The Court declares that Green should lose on the merits of his recusal appeal, assuming that his appeal is properly before us.²⁸ But the Court holds that the merits of the appeal are not properly before us. Because the record of the Article 46.05 hearing had already been forwarded to this Court for our “review” under Section (l), the Court reasons, the trial court lacked authority to entertain Green‘s recusal motion and there is nothing for him to appeal.²⁹ But this reasoning also seems to depend upon the Court‘s assumption that what Article 46.05 provides for is an ordinary “direct appeal” of the trial court‘s Article 46.05 ruling. For reasons I have developed at length ante, however, it is clear to me from the statutory language and from legislative history that our review is not an ordinary “direct appeal.”

There is a simpler approach—one that conforms to my view that our “review” is more in the nature of a habeas review. In the non-capital post-conviction habeas corpus context, we do not consider the trial court to lack jurisdiction or authority to entertain amended or supplemental pleadings with respect to an Article 11.07 writ of habeas corpus just because the original writ application has already been forwarded to this Court under the provisions of Article 11.07, Section (d).³⁰ We will typically consider whatever matters continue to be forwarded to us from the convicting court right up to the point at which we finally rule on the habeas corpus application. Although there is no case law to cite for this proposition, it has long been the Court‘s established practice. I do not see why we cannot handle Article 46.05 reviews similarly. A motion to recuse is appropriate in a post-conviction habeas corpus proceeding, we recently held.³¹ I presume that they are equally appropriate for Article 46.05 competency proceedings. A convicting court‘s “order, findings, or recommendations” under Article 46.05 can easily be construed to constitute the “final judgment” that suffices to authorize appeal of a recusal motion under former Texas Rules of Civil Procedure, Rule 18a(f), (now Rule 18a(j)(1)(A)).³² After all, the trial court‘s “order, findings, or recommenda-

tions” are the functional equivalent of a “final judgment“—at least in contemplation of the evident purpose of the rule, to prevent interlocutory appeals. I see no reason to construe Rule 18a(f) so strictly that we cannot entertain the merits of an adverse ruling on a recusal motion—even if that motion was not ruled upon until after the record of the 46.05 hearing has already been forwarded to us—as long as the condemned inmate can get the matter in front of us before we ourselves have finally disposed of his Article 46.05 review. This approach has the obvious benefit of affording us maximum flexibility to deal with the inherently exigent nature of last-minute claims of incompetency to be executed.³³

In any event, I agree with the Court‘s apparent dicta that the appellant has not demonstrated that the regional presiding judge abused his discretion to deny Green‘s motion to recuse the convicting court. On that basis I concur in the Court‘s judgment to deny any kind of relief in cause number AP-76,381.

IV. CONCLUSION

I ultimately agree with the Court‘s bottom line with respect to all three cause numbers that are before us. To the extent that the Court‘s reasoning with respect to all three is premised, however, upon the notion that Article 46.05 prescribes an ordinary direct appeal that limits our review of the competency determination to the “highly deferential” abuse of discretion standard, it fails to credit the manifest legislative intent. For this reason, though I concur in the various results that the Court reaches, I cannot join its opinion.

Prisscilla Lorraine MECHELL, Appellant, v. The STATE of Texas, Appellee.

No. 10-10-00416-CR.

Court of Appeals of Texas, Waco.

Sept. 14, 2011.

Discretionary Review Refused Feb. 15, 2012.

Notes

1

See TEX. PENAL CODE § 19.03(a)(2). See Smith v. State, 165 S.W.3d 361, 363-64 (Tex.Crim.App.2005) (describing the Legislature‘s clarification of its original intent with respect to the substantive standard for post-conviction DNA testing in light of this Court‘s construction of the statute‘s initial incarnation in Kutzner v. State, 75 S.W.3d 427 (Tex.Crim.App.2002)).

2

Green v. State, 2004 WL 3094650 (Tex.Cr.App., No. AP-74,398, Dec. 1, 2004) (not designated for publication). TEX. CODE CRIM. PROC. art. 46.05.

3

See TEX. CODE CRIM. PROC. art. 46.05 (forbidding the execution of an incompetent defendant, defining incompetency to be executed, and providing the procedures for determining competency). See Id. § (l) (“Following the trial court‘s determination under Subsection (k) [after the trial court has found a “substantial showing” of incompetency and appointed experts under Subsection (f), reviewed all of the evidence, and determined whether the defendant has established his incompetency by a preponderance of the evidence] and on motion of a party, the clerk shall send immediately to the court of criminal appeals in accordance with Section 8(d), Article 11.071, the appropriate documents for that court‘s review and entry of a judgment of whether to adopt the trial court‘s order, findings, or recommendations issued under Subsection (g) or (k). The court of criminal appeals also shall determine whether any existing execution date should be withdrawn and a stay of execution issued while that court is conducting its review or, if a stay is not issued during the review, after entry of its judgment.“).

4

551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). See Id. § (l-1) (“[T]he court of criminal appeals may not review any finding of the defendant‘s competency made by a trial court as a result of a motion filed under this article if the motion is filed on or after the 20th day before the defendant‘s scheduled execution date.“). Green filed his Article 46.05 motion on June 1, 2010; his execution was scheduled for June 30, 2010.

5

Green v. State, No. AP-76,374, 2010 Tex.Crim.App. Unpub. LEXIS 407 (Tex.Cr.App. Jun. 30, 2010) (not designated for publication). We received the trial judge‘s clarification on July 14. Id. § (k).

6

TEX. CODE CRIM. PROC. art. 46.05(a). Id. § (l).

7

Id. E.g., Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

8

See id., at (l) (“Following the trial court‘s determination under Subsection (k) and on motion of a party, the clerk shall send immediately to the court of criminal appeals in accordance with Section 8(d), Article 11.071, the appropriate documents for that court‘s review and entry of a judgment of whether to adopt the trial court‘s order, findings, or recommendations issued under Subsection (g) or (k). The court of criminal appeals also shall determine whether any existing execution date should be withdrawn and a stay of execution issued while that court is conducting its review or, if a stay is not issued during the review, after entry of its judgment.“). E.g., Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App.2008).

9

Ex parte Goodman, 816 S.W.2d 383, 385 (Tex.Cr.App.1991); see also Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Cr.App.1978) (habeas corpus does not lie as a substitute for an appeal). Majority Opinion at 440-41 (citing Guzman, supra, at 89).

10

977 S.W.2d 610, 611 (Tex.Cr.App.1998). TEX. CODE CRIM. PROC. art. 46.05 § (l).

11

TEX. CODE CRIM. PROC. art. 11.071, § 1. Ex parte Spencer, 337 S.W.3d 869, 879-80 n. 1 (Tex.Crim.App.2011) (Price, J., concurring); Ex parte Robbins, 360 S.W.3d 446, 467 n. 14 (Tex.Crim.App.2011) (Price, J., concurring).

12

Id. at 187. 256 S.W.3d 682, 685 (Tex.Cr.App.2008). Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991).

13

See TEX. CODE CRIM. PROC. art. 46.05(m) (“If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the defendant be reexamined by mental health experts to determine whether the defendant is no longer incompetent to be executed.“). Acts 1999, 76th Leg., ch. 654, § 1, p. 3226, eff. Sept. 1, 1999; Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex.Crim.App.2000).

14

551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). House Bill 1545, House Criminal Jurisprudence Committee Bill Analysis, at 1 (http://www.capitol.state.tx.us/tlodocs/80R/analysis/PDF/HB01545H.pdf#navpanes=0). See also Senate Research Center Bill Analysis, at 1 (http://www.capitol.state.tx.us/tlodocs/80R/analysis/PDF/HB01545E.pdf#navpanes=0) (“Article 46.05, Code of Criminal Procedure, is currently interpreted to contain only a one-way appeal, allowing the prosecution to appeal a court finding that an inmate is incompetent to be executed, while not providing the same ability to appeal to the inmate. H.B. 1545 equalizes the appellate rights for the prosecution and the defense and shifts the method of district court determinations to a process similar to that adopted in habeas corpus proceedings.“); House Research Organization Bill Analysis, at 2 (http://www.hro.house.state.tx.us/pdf/ba80r/hb1545.pdf#navpanes=0) (“HB 1545 specifically would allow either party to appeal a trial court‘s finding on incompetency. The bill would make the appeals process more like those in actions on writs of habeas corpus by having the trial court make findings and having the Court of Criminal Appeals make the final decision on appeal.“) (All emphases added).

15

See Panetti, 551 U.S., at 948-954. Majority Opinion at 440-41.

16

Id., at 950. Id. at 441 & nn. 24 & 25.

17

Ibid. The Court cites three state cases. Majority Opinion at 441 n. 24. The first is State v. Irick, 320 S.W.3d 284 (Tenn.2010). Tennessee has no statute governing competency to be executed proceedings (or at least it didn‘t as of Irick), so its procedure is court-made. In Van Tran v. State, 6 S.W.3d 257, 271-72 (Tenn.1999), the Tennessee Supreme Court judicially crafted a procedure that included an “appeal” of the trial court‘s ruling. Even then, the appellate standard was: “the trial court‘s finding on the issue of competency will be reviewed as a question of fact and presumed correct, unless the evidence in the record preponderates against the finding.” Id. at 272. This hardly sounds like an abuse of discretion standard of review. The second is Commonwealth v. Banks, 29 A.3d 1129, 1135 (Pa.2011). Like Tennessee, however, Pennsylvania has no statutory scheme in place for determining competency to be executed, and the Pennsylvania Supreme Court also found itself having to judicially fashion a constitutionally adequate procedure out of whole cloth. In the absence of contrary statutory language, the Court appointed a master to find facts and then accorded ordinary appellate deference to the master‘s fact findings. The third case is State v. Brooks, 2011-Ohio-5877, 2011 WL 5517300 (Ohio Ct.App.2011). While Ohio has a statutory scheme for determining competency, the statutes assign the fact finding function exclusively to the trial court and do not even make mention of review by a higher court. OHIO REV. CODE ANN. §§ 2949.28 & 2949.29. The Court next cites two federal cases. Majority Opinion at 441 n. 25. The first case is Bedford v. Bobby, 645 F.3d 372, 375 (6th Cir.2011). Bedford is indeed a case about competency to be executed, but the issue to which the Sixth Circuit applied the abuse of discretion standard was not the substantive competency issue, but whether the federal habeas applicant was entitled to a stay of execution while the federal courts reviewed the merits of his eleventh hour claim. The second case that the Court cites, Ferguson v. Sec‘y for the Dept. of Corr., 580 F.3d 1183, 1221 (11th Cir.2009), does not even involve an issue of competency to be executed at all. In short, Ferguson and Bedford are not cases, as the Court describes them, “that have adopted an abuse-of-discretion standard in reviewing competency-to-be-executed findings.” Majority Opinion at 441.

18

758 S.W.2d 250, 252, 254-55 (Tex.Crim.App.1988).

19

Panetti, 551 U.S., at 949 (citing Ford v. Wainwright, 477 U.S. 399, 426, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). Acts 1999, 76th Leg., ch. 654, § 1, eff. Sept. 1, 1999.

20

Id., at 951. 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

21

See TEX. CODE CRIM. PROC. art. 46.05(l) (“Following the trial court‘s determination under Subsection (k) and on motion of a party, the clerk shall send immediately to the court of criminal appeals in accordance with Section 8(d), Article 11.071, the appropriate documents for that court‘s review and entry of a judgment of whether to adopt the trial court‘s order, findings, or recommendations issued under Subsection (g) or (k). The court of criminal appeals also shall determine whether any existing execution date should be withdrawn and a stay of execution issued while that court is conducting its review or, if a stay is not issued during the review, after entry of its judgment.“). Ex parte Alba, 256 S.W.3d 682 (Tex.Crim.App.2008) (plurality op.); Ex parte Chi, 256 S.W.3d 702 (Tex.Crim.App.2008) (plurality op.).

22

Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (citations omitted) (paragraph breaks inserted). Majority Opinion at 439-40 (observing in context of discussing Alba that “[a] finding of incompetency results in only a stay during the defendant‘s incompetence; it would not render the appellant‘s sentence invalid“).

23

See, e.g., State v. Irick, 320 S.W.3d 284, 292 (Tenn.2010) (“[T]he trial court‘s finding on the issue of competency is reviewed as a question of fact and presumed correct unless the evidence in the record preponderates against the finding.“); Commonwealth v. Banks, 29 A.3d 1129 (Pa.2011) (“this Court reviews the trial court‘s findings [as to whether the defendant is competent to be executed] for an abuse of discretion“); State v. Brooks, 2011-Ohio-5877, at ¶ 15, 2011 WL 5517300 (Ohio Ct.App.2011) (“The fundamental question of whether the trial court properly denied Brooks‘s petition for postconviction relief by finding him competent to be executed is reviewed under an abuse of discretion standard.“). Id. at 439-40.

24

Bedford v. Bobby, 645 F.3d 372, 375 (6th Cir.2011) (citing Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir.2007)); Ferguson v. Sec‘y for the Dep‘t of Corr., 580 F.3d 1183, 1221 (11th Cir.Fla.2009) (citing Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir.2003)). See id. (“Neither the plain language of Article 11.071 nor our decisions in Smith and Alba establish competency-to-be-executed claims as cognizable on a writ of habeas corpus. Because Article 46.05 provides the appellant with all of the process that is due to him, we see no reason to depart from the well-established principle that a writ of habeas corpus is not a substitute for a direct appeal.“).

25

State v. Dixon, 206 S.W.3d 587, 590 (Tex.Cr.App.2006) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App.1990)). TEX. CODE CRIM. PROC. art. 46.05, § (l-1).

26

Id. Alba, supra, at 689-90 (Cochran, J., concurring); Chi, supra, at 704 (Cochran, J., concurring).

27

477 U.S. 399, 406-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Green also argues that we must permit him to pursue habeas relief on his competency claim because of certain deficiencies in the statutory scheme under Article 46.05. The Court correctly rejects this argument, but once again I fear it speaks unnecessarily broadly in its rejection. The Court declares globally that “[w]e do not find any constitutional infirmities lurking within Article 46.05.” Majority Opinion at 440. I agree that the particular application of Article 46.05 to Green satisfied the procedural dictates of Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). But I disagree that there are no—at least potential—constitutional infirmities in the statute as it might apply to future death row inmates. I presume the trial court found that Green made the threshold showing to allow him to obtain expert examination under Article 46.05, Section (f), since it in fact appointed two experts. But Section (f) does not explicitly require the trial court to assign one of those experts to assist the defense to rebut any showing by the State of competency. In a given case, this statutory deficiency might well violate Panetti‘s requirement “to provide petitioner with an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts.” 551 U.S. at 951, 127 S.Ct. 2842. The prudent trial court in Green‘s case seems to have assigned one of the statutorily authorized experts specifically to assist Green—in any event, Green was able to rely heavily upon the opinion of Dr. Mosnik to make his case for incompetency. I believe this satisfies the “basic requirement” that the defense be adequately equipped “to submit ‘evidence and argument from the prisoner‘s counsel, including expert psychiatric evidence that may differ from the State‘s own psychiatric examination[.]‘” Id. at 950, 127 S.Ct. 2842 (quoting Justice Powell‘s concurring opinion in Ford, supra, at 427, 106 S.Ct. 2595). But it is not at all difficult to imagine potential constitutional infirmities that might arise on the facts of some future case. Article 46.05 could very well be applied some day in such a way that it would “infringe upon these rights.” Majority Opinion at 440. There is no need to declare the statute constitutionally flawless to dispose of this case, and the Court should not.

28

Id., at 422. Majority Opinion at 446.

29

Id., at 426. Id. at 445-46.

30

Panetti, 551 U.S., at 949. TEX. CODE CRIM. PROC. art. 11.07 § (d).

31

See TEX. CODE CRIM. PROC. art. 46.05. Ex parte Sinegar, 324 S.W.3d 578 (Tex.Crim.App.2010).

32

See TEX. CODE CRIM. PROC. art. 46.05(k). TEX. R. CIV. P. 18a(f) (“If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment.“).

33

551 U.S. 930, at 948-62, 127 S.Ct. 2842. The Court argues that a much better vehicle for an inmate in Green‘s position to challenge an adverse recusal ruling would be an original application for writ of habeas corpus (not brought under the auspices of Articles 11.07, 11.071 or 11.072 of the Code of Criminal Procedure), invoking our habeas corpus jurisdiction under Article V of the Texas Constitution. Majority Opinion at 446 & n. 50. It is not self-evident to me, however, that a challenge to a lower court‘s ruling on a recusal motion is cognizable in a writ of habeas corpus of any description. “The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty.” TEX. CODE CRIM. PROC. art. 11.01. I doubt that our correction of an erroneous ruling on a motion to recuse would affect the legality of Green‘s literal “custody” or “restraint.” See TEX. CODE CRIM. PROC. arts. 11.21 through 11.23. Nor is it likely that Green otherwise has any kind of residual “liberty interest” in remedying an erroneous ruling on his motion to recuse. Compare Ex parte Alba, supra, at 693 (Price, J., dissenting) (even death row inmates who may constitutionally be executed have a residual liberty interest in not being executed in a manifestly cruel and unusual manner, which interest should be deemed subject to vindication via post-conviction writ of habeas corpus).

34

Id., at 941-42.

35

Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006).

36

Panetti v. Quarterman, 551 U.S., at 956-57, 127 S.Ct. 2842.

37

Id., at 959-60 (internal citations omitted).

38

Article 46.05 was amended in 2007 (see Acts 2007, 80th Leg., R.S., ch. 677) but the amendments have no relation to Panetti.

39

See Overstreet v. State, 877 N.E.2d 144, 172 (Ind.2007) (“[In Panetti] the Supreme Court again declined to attempt to set down a rule governing all competency determinations. However, the Court departed from the Justice Powell formulation and expanded upon the Eighth Amendment‘s reach for persons with mental illness.“) (internal citations omitted) (emphasis added).

40

See, e.g., Thompson v. Bell, 580 F.3d 423, 434 (6th Cir.2009) (“The Panetti Court clarified Ford‘s competency-for-execution and ‘substantial threshold showing’ standards“); State v. Motts, 391 S.C. 635, 651, 707 S.E.2d 804 (S.C.2011) (“In [Panetti], the United States Supreme Court reiterated the holding in Ford and explained . . .“); State v. Irick, 320 S.W.3d 284, 293-294 (Tenn.2010) (finding that Panetti “explained” and “clarif[ied]” Ford);

41

See TEX. CODE CRIM. PROC. art. 46.05(h) (“A defendant is incompetent to be executed if the defendant does not understand: 1) that he or she is to be executed and that the execution is imminent; and 2) the reason he or she is being executed.“).

42

Arnold v. State, 853 S.W.2d 543, 544 (Tex.Cr.App.1993) (holding that TEX. R. CIV. P. 18a “applies to criminal cases absent ‘any explicit or implicit legislative intent indicating otherwise.’ “).

43

TEX. R. CIV. P. 18a(g)(7).

44

See TEX. CODE CRIM. PROC. art. 46.05(m), (n) (“If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the defendant be reexamined by mental health experts to determine whether the defendant is no longer incompetent to be executed;” “If the court of criminal appeals enters a judgment that a defendant is not incompetent to be executed, the court may withdraw any stay of execution issued under Subsection (l), and the trial court may set an execution date as otherwise provided by law.“).

45

See State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 480 (Tex.Cr.App.1985) (where defendant filed motion to recuse the trial judge after verdict and sentence were announced but before formal sentencing, recusal motion was moot because “it was impossible to grant the relief requested, that of a trial before a different judge.“).

46

Green v. State, No. AP-76,374, 2010 Tex.Crim.App. Unpub. LEXIS 407 (Tex.Cr.App. Jun. 30, 2010) (not designated for publication).

47

R. CIV. P. 18a(f).

48

See, e.g., North East Independent School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966); Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377 (1941).

49

This is not a mere technicality. In AP-76,374 and AP-76,376, we received briefing from the parties on July 15, 2010, and the cases were submitted for our consideration on July 23. In the recusal matter, AP-76,381, the appellant did not file a notice of appeal until July 19, and it was not until October 4 and 15 that we received briefs from the appellant and the State, respectively. Were we to allow parties to file stand-alone appeals from post-trial motions, regardless of the progress of an appeal from the final judgment in the case, it could significantly affect appellate courts’ ability to manage their dockets and decide merits appeals in a timely manner.

50

See Alba, 256 S.W.3d, at 689-90 (Cochran, J., concurring) (our original writ jurisdiction “is a power that should be exercised with great caution,” but one that can be used to prevent unconstitutional executions when no other remedy is available).

51

Kemp v. State, 846 S.W.2d 289, 305 (Tex.Cr.App.1992).

52

R. CIV. P. 18a(f).

53

Kemp, 846 S.W.2d at 306.

54

The appellant notes that the United States Supreme Court has criticized the practice of trial courts adopting verbatim findings of fact prepared by the State. The court has never, however, ruled such practices—whether solicited ex parte or not—to be unlawful. See Jefferson v. Upton, — U.S. —, 130 S.Ct. 2217, 2223, 176 L.Ed.2d 1032, 1039-40 (2010); Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Case Details

Case Name: Green, Jonathan Marcus

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 27, 2012

Citation: 374 S.W.3d 434

Docket Number: AP-76,374, AP-76,376, AP-76,381

Court Abbreviation: Tex. Crim. App.