Green, Jonathan Marcus
Green, Jonathan Marcus
Opinion of the Court
delivered the opinion of the Court,
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
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,
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 Panettis “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*438 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.
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.”
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,
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.”
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.”
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;
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
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.
The appellant cites Wood v. Quarterman,
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,
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 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.
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 demean- or.
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— state
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.
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.
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.
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(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.
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.
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.
In following Panetti, courts have disagreed as to whether it imposed an additional requirement on courts in determining competency,
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].”
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
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.
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 ....”
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.”
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.
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
. See Tex. Penal Code § 19.03(a)(2).
. Green v. State, 2004 WL 3094650 (Tex.Cr.App., No. AP-74,398, Dec. 1, 2004) (not designated for publication).
. 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).
. 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
. 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.
. Tex.Code Crim. Proc. art. 46.05(a).
. Id.
. 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.”).
. 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) (ha-beas corpus does not lie as a substitute for an appeal).
. 977 S.W.2d 610, 611 (Tex.Cr.App. 1998).
. TexCode Crim. Proc. art. 11.071, § 1.
. 256 S.W.3d 682, 685 (Tex.Cr.App. 2008).
. 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.”).
. 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
. See Panetti, 551 U.S., at 948-954, 127 S.Ct. 2842.
. Ibid.
. 572 F.Supp.2d 814, 817 (W.D.Tex. 2008).
. Panetti, 551 U.S., at 949, 127 S.Ct. 2842 (citing Ford v. Wainwright, 477 U.S. 399, 426, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)).
. See Tex.Code Crim. Proc. art. 46.05(Z) ("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 docu
. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (citations omitted) (paragraph breaks inserted).
. 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.”).
. 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)).
. 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)).
. Id.
. 477 U.S. 399, 406-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
. Panetti, 551 U.S., at 949, 127 S.Ct. 2842.
. See Tex.Code Crim. Proc art. 46.05.
. See Tex.Code Crim. Proc. art. 46.05(k).
. Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006).
. Panetti v. Quarterman, 551 U.S., at 956-57, 127 S.Ct. 2842.
. Id., at 959-60, 127 S.Ct. 2842 (internal citations omitted).
. Article 46.05 was amended in 2007 (see Acts 2007, 80th Leg., R.S., ch. 677) but the amendments have no relation to Panetti.
. 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)
. 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 "clarified]” Ford);
. See TexCode 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.”).
. 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.' ").
. TbxlR. Civ.P. 18a(g)(7).
. 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 (Z), and the trial court may set an execution date as otherwise provided by law.”).
. 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, recu-sal motion was moot because “it was impossible to grant the relief requested, that of a trial before a different judge.”).
. Green v. State, No. AP-76,374, 2010 Tex.Crim.App. Unpub. LEXIS 407 (Tex.Cr.App. Jun. 30, 2010) (not designated for publication).
. R. Civ. P. 18a(f).
. 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).
. 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.
. 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).
. Kemp v. State, 846 S.W.2d 289, 305 (Tex.Cr.App. 1992).
. R. Civ. P. 18a(f).
. Kemp, 846 S.W.2d at 306.
. 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).
Concurring Opinion
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.
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.
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
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.
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
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.
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.
Perhaps that has changed in light of Alba and Chi
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.
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.
There is a simpler approach — one that conforms to my view that our “review” is more in the nature of a habeas review. In
In any event, I agree with the Court’s apparent dicta that the appellant has not demonstrated that the regional presiding judge abused its 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
. 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)).
. Tex.Code Crim Proc. art. 46.05.
. See Id. § (Z) ("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.”).
. See Id. § (Z-l) ("[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.
. Id. § (k).
. Id. § (Z).
. E.g., Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).
. E.g., Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App. 2008).
. Majority Opinion at 440-41 (citing Guzman, supra, at 89).
. Tex.Code Crim. Proc. art. 46.05 § (Z).
. 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).
. Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App. 1991).
. 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).
. House Bill 1545, House Criminal Jurisprudence Committee Bill Analysis, at 1 (http:// www.capitol.state.tx.us/tlodocs/80R/analysis/ PDF/HBO1545H.pdf#navpanes=0). See also Senate Research Center Bill Analysis, at 1 (http://www.capitol.state.tx.us/tlodocs/80R/ analysis/PDF/HBO 1545 E.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/hbl545. 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).
. Majority Opinion at 440-41.
. Id. at 441 & nn. 24 & 25.
. 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.
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.
. 758 S.W.2d 250, 252, 254-55 (Tex.Crim.App. 1988).
. Acts 1999, 76th Leg., ch. 654, § 1, eff. Sept. 1, 1999.
. 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
. 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.).
. 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”).
. Id. at 439-40.
. 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 habe-as corpus is not a substitute for a direct appeal.”).
. Tex.Code Cmm. Proc. art. 46.05, § (1-1).
. Alba, supra, at 689-90 (Cochran, J., concurring); Chi, supra, at 704 (Cochran, J., concurring).
. 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 Panet-ti'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.
. Majority Opinion at 446.
. Tex.Code Crim Proc. art. 11.07 § (d).
. Ex parte Sinegar, 324 S.W.3d 578 (Tex.Crim.App. 2010).
. Tex.R. Civ. Proc. 18a(f) ("If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment.”).
. 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 recu-sal motion is cognizable in a writ of habeas corpus of any description. "The writ of habe-as 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).
Reference
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- Jonathan Marcus GREEN, Appellant, v. the STATE of Texas
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