November 16, 2018

Texas Court of Criminal Appeals

Turner v. State

No. AP-76,580                    11/14/18


Can a defendant obtain a new trial on direct appeal when his defense counsel conceded his guilt at trial against his wishes?

Is a retrospective competency trial feasible when the defendant’s claims of incompetency include delusions surrounding the facts of the case?


Yes. Although ineffective assistance of counsel claims generally fail on direct appeal, the defendant’s claim that his counsel conceded guilt against his wishes was established in the trial record. Moreover, as announced in McCoy v. Louisiana, this is a federal structural error that cannot be forfeited. Thus, even though trial counsel’s strategy to concede guilt of the lesser-included offense of murder was far more rational than the defendant’s claim of a government conspiracy, whether to concede guilt is one of the few, core issues that the defendant alone could determine under the Sixth Amendment.

As to the defendant’s challenges to the trial court’s retrospective determination of his competence to stand trial, the feasibility of a retrospective competency trial depends on the quality and quantity of the evidence of competency given the passage of time since the trial. Here, the retrospective competency trial was to determine the defendant’s ability to effectively consult with counsel during his trial, a determination that could be made without consideration of the specific facts of the case. Additionally, the defendant was not entitled to a mistrial when one of the jurors in the competency trial admitted to reading an article about the previous case. Merely mentioning the nature of the crime for which the defendant was convicted is not sufficiently prejudicial to warrant reversal when the juror did not share the information with other jurors and stated that he could put aside the information concerning the original trial as irrelevant to a competency determination. Read opinion.


The outcome of this case was dictated by a strategic decision of defense counsel that was defensible at the time based on existing Supreme Court precedent. This decision shows that any defendants who can make the same showing as the defendant here are likely to obtain new trials. Otherwise, the case is useful if you are required by an appellate court to litigate a retrospective competency claim.


There will be no case summaries next week. Happy Thanksgiving!

NCFI Prosecutor Courses

Applications are now being accepted for the National Computer Forensics Institute prosecutor courses. All costs, including travel, are covered through the Federal government. The deadline to apply is November 26, 2018. Program dates and application information available here.

Jury selection training

Registration for Jury Selection in Impaired Driving Prosecutions is now open. This free 4-hour program will be held in three cities (Richmond, Rockwall, and San Antonio) on Friday, December 7. More information and registration links are available here.