Green v. State

374 S.W.3d 434

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.

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 murder ¹ 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 court ⁷ 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.” ¹⁰Article 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...