Druery v. State

• Decision Date: 30 October 2013
• Docket Number: No. AP–76833.,AP–76833.
• Parties: Marcus DRUERY, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

412 S.W.3d 523

Marcus DRUERY, Appellant

v.The STATE of Texas.

No. AP–76833.

Court of Criminal Appeals of Texas.

Oct. 30, 2013.

Gregory W. Wiercioch, Texas Defender Service, San Francisco, CA, Katherine C. Black, Houston, TX, for Appellant.

Douglas Howell III, Assistant District Attorney, Bryan, TX, Lisa C. McMinn, State's Attorney, Austin, for The State of Texas.

OPINION

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

Appellant, Marcus Druery, was convicted of capital murder and sentenced to death in 2003. Shortly before his scheduled execution on August 1, 2012, he filed a motion to determine competency to be executed under Article 46.05.¹ The trial court held an informal hearing, found that Appellant had not made a “substantial showing” of incompetency and denied the motion. As a result of denying Appellant's motion, there was no formal hearing on the merits to determine if Appellant was incompetent to be executed. Appellant moved to send the record to this Court, and the trial court granted that motion.

After reviewing the record, we determined that further review was needed and stayed the execution. See Druery v. State, No. AP–76,833 (Tex.Crim.App. July 27, 2012) (per curiam) (not designated for publication). On August 9, 2012, we ordered briefing from the parties concerning five issues. Having reviewed the parties' briefing on these issues, we find that Appellant made a substantial showing of incompetency to be executed, and so he is entitled to further proceedings, including the appointment of “at least two mental health experts” and a determination regarding competency. SeeArt. 46.05(f), (k).

I. Background

The facts of the offense are summarized in our opinion on direct appeal. Druery v. State, 225 S.W.3d 491 (Tex.Crim.App.2007). However, a thorough explanation of the facts underlying the competency issue is helpful in resolving the issues before us. After Appellant had exhausted his direct appeals, but while his petition for a writ of certiorari on his federal writ of habeas corpus was still pending before the United States Supreme Court, the State asked the trial court to schedule an execution date. The trial court held a hearing on February 16, 2012. At the hearing, the State argued that the Supreme Court's certiorari decision would not conflict with a scheduled execution date “91 days out.” Appellant's writ counsel advised the court that he anticipated proceeding under Chapter 46 based on his concerns about Appellant's competency to be executed. SeeArt. 46.05. He argued that it was not practical to schedule an execution date before the Chapter 46 proceedings were resolved.

The trial court scheduled an execution date of August 1, 2012, which it believed would provide sufficient time to resolve the matter of Appellant's competency to be executed, and ordered Appellant to file a competency motion by Monday, April 16, 2012.

After that hearing, the federal district court that had appointed the original writ counsel granted that counsel's motion to withdraw and appointed different counsel “to represent Druery throughout the remainder of the federal habeas process.” On March 22, 2012, attorneys from the Texas Defender Service (“TDS”) filed in the state court a motion for appointment of counsel in the Chapter 46 proceeding. The State filed an answer arguing that Appellant's motion for counsel should be denied because he was not entitled to counsel to prepare an Article 46.05 motion. The State also questioned whether the TDS attorneys were the best choice to represent Appellant in competency proceedings and suggested some alternatives. The TDS attorneys filed a reply, objecting to the State's interference in the matters of whether to appoint counsel and the choice of counsel.

On April 12, 2012—four days before the court-ordered filing deadline—Appellant filed a motion for discovery, requesting all of his Texas Department of Criminal Justice (“TDCJ”) and Brazos County jail records. On April 16, Appellant did not file an Article 46.05 motion but instead filed a “notice,” indicating that he could not file a competency motion at that time because the court had not yet ruled on his pending motions, including his motion for appointment of counsel, his motion for discovery, and an ex parte motion for funding.

The court held a hearing on Appellant's pending motions on April 24, 2012. At that hearing, the State again argued that Appellant was not entitled to counsel until after he filed an Article 46.05 motion that made a threshold showing of incompetency. The trial court expressed frustration with the delay and with Appellant's request to extend the filing deadline by an additional 60 days. The judge stated that a competency motion did not require discovery and that defense counsel should not need 60 days to put together a motion with a single affidavit establishing incompetency. Appellant's counsel stated that they had “to have every piece of evidence possible to show that we have made that threshold.... [I]n order to do that we need not only the records[,] ... [but] we need up-to-date records of his treatment at TDCJ for all purposes....” The judge stated that he wanted to hear about the facts, not the procedures, and that Appellant's attorneys were not letting him make a determination because they would not give him the facts to support their incompetency claim.

Appellant's attorneys responded that they wanted to develop and present the facts, but “we'd really like to give you the most comprehensive set of facts so that you really can consider the entire record....” The court responded:

This is not as difficult as you're making it out to be. The filing of a 46.05 motion does not require as much effort as you think it does. There need only be a threshold showing that would be sufficient for the Court to appoint psychiatrists to take a look at it.... You don't have to marshal your entire argument. You just need to open the door so that I can look in.

Appellant's attorneys reasoned that they had to complete their investigation and marshal their entire argument in the competency motion because, if they did not, and if the trial court found that the motion did not make a threshold showing of incompetency, the presumption of competency under Article 46.05(e) would apply to any future competency motions.² In addition, they would not be allowed to develop the record if they sought review in federal court.

The judge granted Appellant's motions for appointment of counsel and discovery, stating that the proceeding was already so adversarial that Appellant was entitled to counsel. He added that Appellant had “filed his own request for counsel for a DNA testing,” and that he had “done quite a good job.” Appellant's counsel stated that this motion was evidence of Appellant's delusional state. The judge emphasized that the new filing deadline was May 24, 2012.

Appellant later filed a motion to compel discovery,³ and on May 14, the trial court held a hearing on that motion. The State acknowledged that it had not provided complete records for defense counsel's review, but it added that the records being collected from the state agencies should go directly to the trial court so that the State would not be blamed for misplacing or omitting anything. The State also expressed confusion as to why Appellant's counsel could not subpoena the records directly from the state agencies. The trial court stated that the records could go to the court clerk's office, where they would be available for defense counsel to review during regular business hours.

Defense counsel requested another extension of time to file the Article 46.05 competency motion, asserting that the discovery delay, plus the anticipated delay associated with having to review records at the courthouse and designate the documents to be copied by the clerk, would prevent them from filing the Article 46.05 competency motion by May 24. The trial court responded, “All you have to do is make a threshold showing to the Court. You don't have to marshal your entire case.” Counsel responded, “Our goal is to do this correctly here.... And while I ... agree with Your Honor that the threshold is low, we'd like to make the best case possible so we don't have to do this again in federal court.” The Court responded, “This began in February, it is now May, the execution date is in August.... That's why I'm denying any further request for an extension of time.... [T]en days is plenty of time to prepare a threshold motion.” Appellant's attorneys reiterated that they needed to “present as much evidence as possible” in case the matter went to federal court, “not to mention our expert is going to need time to review these documents ... so that we can incorporate her report into our 46.05 [motion].” Counsel also requested that all of the records be copied at county expense and delivered to TDS, but they acknowledged that they did not know how many pages there were or which records were relevant. The court denied the request.

On May 24, 2012, instead of filing his Article 46.05 motion, Appellant filed another “notice,” informing the trial court that he could not file an Article 46.05 motion at that time because the State had not provided discovery. Following the court's previous denial of the motion to compel discovery, Appellant's counsel had served subpoenas on eight state agencies, but had not yet received the subpoenaed records. A mental-health expert, Dr. Diane Mosnik, had interviewed Appellant and conducted psychological testing, but she could not render a definitive opinion without reviewing the records that not yet been received. “[C]ounsel cannot file an Article 46.05 motion until the investigation is complete and they can allege all facts relevant to a Ford claim.” See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

The trial court scheduled a June 29...