Opinion
No. AP-76,374
June 30, 2010. DO NOT PUBLISH.
On Review of an Article 46.05 Competency to Executed Hearing from Cause No. 00-10-06435-CR in the 221st District Court Montgomery County.
ORDER
In July 2002, a jury found appellant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set appellant's punishment at death. This Court affirmed appellant's conviction and sentence on direct appeal. Green v. State, No. AP-74,398 (Tex. Crim. App. Dec. 1, 2004) (not designated for publication). In June 2004, appellant filed in the trial court his initial post-conviction application for writ of habeas corpus. This Court denied appellant relief. Ex parte Green, No. WR-61,225-01 (Tex Crim. App. Mar. 23, 2005) (not designated for publication). Appellant filed his first subsequent application in the trial court on June 23, 2010. This Court filed and set appellant's competency issues, and dismissed his allegation that he was being subjected to cruel and unusual punishment. See Ex parte Green, No. WR-61,225-02 (Tex. Crim. App. June 30, 2010) (not designated for publication). On June 1, 2010, appellant filed an Article 46.05 motion to be evaluated for competency to be executed. The trial court appointed experts to evaluate appellant and held a hearing. After reviewing the reports submitted by both experts, the evidence presented during the evidentiary hearing, and all documents filed in the case, the trial court found that appellant had not established by a preponderance of the evidence that he was incompetent to be executed. On motion of the State, the record was forwarded to this Court for a review of that ruling. After reviewing the record, this Court has determined that it needs more information. Specifically, the Court needs a clarification from the judge presiding over the competency hearing. On page 191 of Volume 3 of the reporter's record, the trial judge stated the Panetti v. Quarterman, 551 U.S. 930, 959 (2007), standard for reviewing competency claims. Then she stated that defendants could file subsequent writ applications pursuant to Texas Code of Criminal Procedure article 11.071 § 5 and stated that it was her opinion that the burden is to show that the current claims and issues have not been and could not have been presented previously in a timely initial [writ] application or by a preponderance that no rational juror could have found those questions beyond a reasonable doubt or by clear and convincing evidence that no rational juror would have answered in the State's favor on the specific issues. She further stated that it was her "understanding we're here on the first section [of Article 11.071 § 5] because of a change in [appellant's] mental capacity from the time that [appellant was] committed in 2002 to the present." She said again later that "this is the subsequent writ." See Vol. 3, p. 192. Finally, in Volume 3, pages 194-95 of the reporter's record of the hearing, the judge explained that she "talked about the three different types of subsequent writs just to show that [she] had an understanding of the statute[.]" On the same pages, she also stated that she followed "the Panetti standard" and applied "the Ford [v. Wainwright, 477 U.S. 399 (1986)] standard" and "after applying all of those standards," it was her ruling not to grant a stay in the case. Because some of the standards mentioned are not applicable in this instance, we order the trial judge, within fifteen (15) days of the date of this order, to file with the Clerk of this Court a written clarification of the standard she followed in making her determination on appellant's Article 46.05 competency motion. Appellant's execution is stayed pending further order from this Court. IT IS SO ORDERED THIS THE 30th DAY OF JUNE, 2010.