Madrid v. State

¶1dissenting.

¶2In this possession of heroin case appellant’s noticed defense pursuant to Article 46.03, Section 2, V.A.C.C.P., was insanity. Rejecting it, the jury convicted appellant and at the punishment stage found two prior convictions', with the consequence that he was ordered confined for life.

¶3A legal axiom is that the law presumes every person to be sane until the contrary is shown. Indeed, in earlier times, when a plea of not guilty by reason of insanity was made and issue joined, for the trial court to inform the jury of that presumption was *113not unusual.1 Because of the presumption the common law, case law and the applicable statutes impose upon an accused the burden of establishing his plea of insanity by a preponderance of testimony.2 No longer, though, is it recommended that a trial court mention the presumption when charging the jury on insanity.3 Nor, in the charge before us, did the trial court allude to the presumption. I shall show why.

¶4In a section under his ground of error four appellant directs our attention to an oral motion in limine requesting the trial court to instruct the State not to mention or argue concerning the presumption of sanity to the jury, and the action of the court in overruling it.4 Thereupon in closing argument the State was permitted, over stoutly asserted objections, to argue that because of presumption of sanity, it had no burden whatsoever on the issue and did not have to produce evidence.5 I am satisfied that the State occasioned error by the trial court and that it was harmful to appellant beyond a reasonable doubt.

¶5Presumption of sanity, like many other so called presumptions, serves only to guide the trial court in locating the burden of proof at a particular time, 1 Texas Practice, McCormick & Ray, Evidence 75 § 57. “It is by reason of this presumption that the law *114casts upon one relying on insanity as a defense to a crime the burden of establishing by a preponderance of the evidence” his defense, Fuller v. State, 423 S.W.2d 924 (Tex.Cr.App.1968); Nilsson v. State, 477 S.W.2d 592, 599 (Tex.Cr.App.1972); Bonner v. State, 520 S.W.2d 901, 906, n. 2 (Tex.Cr.App.1975), and has been upheld against a challenge that it is not based on any reasonable classification or rational foundation, Breland v. State, 489 S.W.2d 623, 625 (Tex.Cr.App.1973). Yet a “presumption” whose function is to allocate the burden of proof is really not a “presumption” in the dictionary sense of drawing a particular inference from a particular fact or from particular evidence. Rather, in the absence of a statute, it is a rule of law that determines which party has the burden of proof and by what standard.

¶6We have not found nor have the parties directed our attention to a prior decision by this Court on the issue. Thus we may, indeed must, resort to general principles and authorities that examine the rule in a context of the issue of insanity that is before us. Omitting footnotes, I quote from McCormick on Evidence, 2d Ed. 830, § 346 “The Effect of Presumptions in Criminal Cases,” the part of a paragraph that appears applicable here:6

“Similarly, the term presumption has been used in connection with rules that . create affirmative defenses to, a crime. These rules . . . may specify that the defendant simply has the burden of producing evidence . or may also fix the burden of persuasion on the defendant as well. They do not operate with regard to inferences drawn from the evidence, but rather operate as principles of substantive law governing the entire proceeding. An example of such rule of law mislabeled a presumption is the ‘presumption of sanity,’ as it operates against the defendant in a criminal case. The so-called ‘presumption’ is simply a rule stating that the defendant has the burden of producing evidence (or of proving) his insanity at the time of the offense. The use of the term presumption is only confusing.”7

¶7Similarly, in 1 Texas Practice 97, McCormick & Ray, Evidence § 85 are the following observations, omitting footnotes, citing a host of Texas cases:

“By the other view the burden of proving insanity at time of the offense is placed upon the accused. However, the measure of persuasion required is only a preponderance of evidence. The Texas courts adopt this latter view. It is frequently said by our courts that the presumption of sanity casts this burden of persuasion upon the accused. In reality, of course, it is merely an affirmative defense, and the burden of establishing it is placed upon the accused as the result of judicial experience in dealing with this issue in criminal cases.”

¶8Of course, the common view perceived by eminent authors of both scholarly works with respect to insanity is now codified without reference to any “presumption.” V.T.C.A., Penal Code, § 8.01(a) provides that insanity is “an affirmative defense to prosecution,” and by reason of id. § 2.04(c), (d) the issue of insanity “is not submitted to the jury unless evidence is admitted supporting the defense,” and, if submitted, “the court shall charge that the defendant must prove the affirmative defense by a preponderance of the evidence.” Thus, provisions of the Penal Code that characterize insanity as an affirmative defense and prescribe the occasion for submitting the affirmatively defensive issue of insanity have stripped the “presumption of sanity” of its purpose and function and reduced it to the anachronism that it had already become.

¶9In this light, then, any effort to categorize a “presumption of sanity” is an exercise in futility. It simply no longer exists. The question then becomes whether the trial *115court erroneously permitted the State to argue in such a way as to gain support for its position by asserting as a matter of law and fact that which is neither.

¶10Canvassing prior opinions and annotating rules derived from them, in Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973) the Court stated:

“To receive the stamp of approval of this Court, jury arguments need to be within the areas of: (1) summation of the evidence . . . ; (2) reasonable deduction from the evidence . . . ; (3) answer to argument of opposing counsel . ; and (4) plea for law enforcement . . . The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney.”

¶11Correlatively stated, improper argument is that which asserts as fact matters which are not in the record, e. g., Alejandro, supra,Lott v. State, 490 S.W.2d 600 (Tex.Cr.App.1973), and that which is represented as law but is. not and, further, is contrary to the charge of the court, Davis v. State, 506 S.W.2d 909 (Tex.Cr.App.1974). Here patently the argument to which objection was persistently made was not confined to Alejandrosubjects and offended its mutually, related principles.

¶12In the first place, counsel was urging the jury to consider the presumption as if it were evidence favorable to the State. Whereas the charge of the court instructs the jury that in deciding whether the affirmative defense of insanity has been proven by a preponderance of the evidence the jury is to determine “the greater weight and degree of credible testimony or evidence introduced before you and admitted in evidence in this case.” The presumption, of course, was neither credible testimony nor evidence adduced. Yet the prosecutor persisted, even to the point of drawing an analogy between the presumption he was relying on and the better known presumption of innocence, concerning which the court did charge in the usual manner. If not ruled directly by Stockton v. State, 146 Tex.Cr.R. 164, 171 S.W.2d 877 (1943), that decision is enough to persuade me that the argument was improper. There Stockton, who had earlier been adjudged sane in the county court, advanced the defense of insanity to the criminal prosecution; when he began to present evidence in support of his plea, the district attorney made a side-bar remark in the presence and hearing of the jury in the course of purporting to object to the testimony “for the reason that this defendant has had an insanity hearing in the County Court and he has been determined to be a sane individual and we object to any further testimony in regard to any insanity on his part.” The court sustained the objection and instructed the jury not .to consider it. Then, as a witness was testifying in support of the plea, the district attorney repeated the ploy and the court again sustained an objection and instructed the jury not to consider the statement. This Court found that the instruction was not sufficient to have withdrawn effectively the prejudicial nature of the remarks:

“It is obvious that the District Attorney, by his conduct, got before the jury un-sworn testimony of a secondary nature upon a material issue which they, according to their own admission, considered in determining whether the appellant was sane or insane at the time of the commission of the offense charged.” 8

¶13Similarly, here, the district attorney put before the jury his unsworn testimony concerning a presumption of sanity to earn for the State the benefit of that presumption as the jury passed on the primary crucial defensive issue raised by appellant.

¶14Secondly, as has been demonstrated above, the statements concerning the presumption being in effect at the very time *116the district attorney was making them are incorrect statements of the law. Appellant having introduced testimony in support of his plea of insanity, the State’s passive role was drained of its vitality.9 In Davis v. State, supra, to the charge of murder the accused raised the defense of accident and the trial court instructed the jury to find him not guilty if it believed or had a reasonable doubt “that the shooting was by the accidental discharge of a shotgun in the hands of the defendant.” The State was permitted to argue over objection that the defense was valid only if the accused was engaged in a lawful act at the time of the shooting and would be forfeited if he were then committing an unlawful act. Here, again, the court instructed the jury to determine from the preponderance of the evidence, meaning credible testimony and evidence admitted, whether appellant was legally insane at the time of the offense. It further instructed the jury in the usual form that the jurors were exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to the testimony and were bound to receive the law from the court as contained in the charge. To admonish the jury, then, to “remember” that the accused “was and is presumed to be sane” derogates the charge of the court and, when reiterated after overruled objections, conveys the impression that the jury may properly give weight to the presumption. Writing for this Court on motion for rehearing in Rodriquez v. State, 100 Tex.Cr.R. 11, 271 S.W. 380, 383 (Tex.Cr.App.1925), Judge Lattimore observed that a trial court may not “so sanction statements as to the law of the case made by the district attorney as in effect to make his approval thereof nullify charges already given.” There the matter at issue was a charge on circumstantial evidence given at the request of the accused and the assault on that part of the charge was made by the district attorney telling the jury that it was not a case of circumstantial evidence, that the court did not believe it to be such and “that the court had simply given to them the special charge because appellant’s counsel had requested same, and that it had been requested only by appellant’s counsel in order that they might make a big speech in the case.”

¶15In the case before us, as required by Article 46.03, Section 2, V.A.C.C.P., and as the jury was informed, appellant gave notice of his intention to offer evidence of insanity as a defense. Since the defense was supported by psychiatric and other testimony, the trial court submitted insanity as an affirmative defense. In his closing argument the prosecuting attorney made a few preliminary remarks and then argued:

“What do you do when your man is caught red handed, what can you do? Well, then you plead not guilty, when you do that you come up and you say this is all a frame, these officers are lying, they are not to be trusted. As long as we are on the subject of foul blows, you can say we didn’t do it, but yes we did. In other words, no ladies and gentlemen he didn’t do this, we plead not guilty, but just in case you prove beyond a reasonable doubt that we did, then we are not guilty by reason of insanity. Blow two hurts.”

¶16Revisiting the facts of the offense briefly, counsel then made the statements, drew the objections and achieved favorable rulings from the court concerning the presumption of sanity that we have been discussing. He then addressed the testimony of the psychiatrist presented by the defense, reminded the jury of portions of testimony given by the psychiatrist for the State, interpreted the testimony of both and then returned to the original theme:

*117“You decide for yourselves. The defendant is as crazy as a fox isn’t he? Is he compelled to sell it? If you are an addict you are not going to give it away under any circumstances. Well I am finished. I think that is the insanity defense. I would like to call it the escape hatch defense. When you were hemmed in on all sides, you come to the courtroom and you know you can always say I knew it was wrong but I couldn’t help myself and a couple of days before trial if you can get somebody to come in and talk to somebody and say that, it looks so good.”

¶17To an objection pointing out that the State was on notice “about our defense and they never had him examined,” which was overruled, the prosecuting attorney responded:

“There is a lot of prisoners up in the jail ladies and gentlemen. I hate to think what would happen if I had to wonder whether or not a defendant was going to put on the defense of insanity so I could have them all examined before trial.”

¶18Given the context in which they were made, surely the inaccurate statements of what purports to be the law constitute improper argument, for they were not contained in the charge of the court and designed to nullify it in that regard. Cook v. State, 540 S.W.2d 708 (Tex.Cr.App.1976); Davis v. State, supra, and Rodriquez v. State, supra.

¶19In the circumstances of this case, I cannot say that the argument is harmless. Therefore, I conclude that the trial court erred in denying the motion in limine, overruling pointed objections to the argument and permitting it to be accepted by the jury as correct. Cook v. State, supra, and cases cited therein.

¶20Because the judgment is not reversed and the cause remanded, I respectfully dissent.

¶30OPINION ON APPELLANT’S MOTION FOR REHEARING '

¶31On original submission this conviction for possession of heroin was affirmed with the punishment being assessed at life imprisonment as a result of two prior felony convictions alleged and proved. See Y.T.C.A., Penal Code, § 12.42(d). The panel of this court to which this cause was submitted was divided on the proper disposition of appellant’s last ground of error dealing with the prosecutor’s reference in jury argument to the presumption of sanity. In the opinion disposing of all the grounds of error, it was held that the presumption of sanity exists and the prosecutor therefore did not err in using it in his argument to the jury. A concurring opinion took the view that the presumption of sanity does not exist but that the reference to such in jury argument in the context in which it was used was harmless error. A dissenting opinion took the same view that the presumption of sanity does not exist but concluded that it was harmful to argue it to the jury.

¶32We granted the motion for rehearing so that appellant’s last ground of error could be considered by the court en banc.

¶33Appellant’s last ground of error submitted in question form reads:

“Did the trial court err in refusing to direct a verdict of acquittal on the issue of insanity and in improperly placing too great a burden upon the accused on that issue through his rulings?”

¶34In addition to being improperly framed in question form, the ground of error is multifarious and not in accordance with Article 40.09, § 9, Y.A.C.C.P. Nevertheless, the panel to whom this cause was submitted, viewed the ground of error, as a contention that the court erred in permitting the prosecutor in his argument to the jury to make reference to the presumption of sanity where the defense of insanity had been interposed. •

¶35After consideration and study, we conclude en banc that the original concurring and dissenting opinions were correct in stating there is no presumption of sanity.1 We conclude further that the prosecutor *118erred in making reference to such presumption in his jury argument, but the error was harmless error under all the circumstances. We adopt the original concurring opinion as the opinion of the court en banc in disposing of appellant’s last ground of error.

¶36Appellant urged on original submission that the trial court erred in refusing to grant his motion for instructed verdict of not guilty. This contention does not appear to have been considered or discussed on original submission. On rehearing appellant re-urges the contention arguing that he had established his defense of insanity as a matter of law because the State produced no evidence in rebuttal.

¶37Appellant called Dr. Manuel Hernandez, a psychiatrist, who testified that he examined appellant for an hour and a half and concluded that appellant was insane on the date of the alleged offense. He related there had been no psychological testing. In rebuttal the State called Dr. Joseph Hor-nisher, a psychiatrist, who had been practicing medicine and psychiatry for fifty years. Hornisher testified that he could not diagnose whether a person was insane according to the standard set by law in an hour and a half examination without any psychological testing, etc. He admitted he had not examined the appellant and did not express an opinion as to his sanity. It is obvious the State called Dr. Hornisher in an effort to weaken the opinion testimony of Dr. Hernandez.

¶38Appellant argues that only Dr. Hernandez testified that he (appellant) was insane, and since Dr. Hornisher had not examined appellant and expressed no opinion as to his sanity, Dr. Hernandez’s testimony was undisputed establishing insanity at the time of the commission as a matter of law.

¶39Insanity is an affirmative defense, V.T. C.A., Penal Code, § 8.01, and the burden of proof of such defense is on the defendant by a preponderance of evidence and the State is not required to negate the existence of such an affirmative defense. V.T. C.A, Penal Code, § 2.04.

¶40Appellant overlooks the fact that the jury is the exclusive judge of the facts, the credibility of the witnesses and the weight to be given their testimony. See Articles 36.13 and 38.04, V.A.C.C.P.; Miller v. State, 566 S.W.2d 614 (Tex.Cr.App.1978). Even though Dr. Hernandez was the only witness to testify as to appellant’s sanity or insanity, the jury was not required to believe him. The jury may accept or reject any or all of the testimony of any witness. Preston v. State, 457 S.W.2d 279 (Tex.Cr.App.1970); Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976).

¶41The defense of insanity was not established as a matter of law, and the court did not err in overruling the motion for instructed verdict. See Graham v. State, 566 S.W.2d 941 (Tex.Cr.App.1978).

¶42Appellant’s motion for rehearing is overruled.