Opinion
No. 05-08-00016-CR
Opinion Filed April 2, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-04-23552-U.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
OPINION
A jury convicted appellant of murder and sentenced him to fifteen years in prison. On appeal, he alleges that factual insufficiency of the evidence and jury-charge error warrant reversal. We affirm the trial court's judgment.
Background
Appellant was in his early twenties at the time of the offense. He lived with his parents and had a history of social anxiety and depression dating back to the eighth grade. The victim, James Read, operated a lawn-mowing service and mowed the lawn at appellant's parents' house. Read befriended appellant's father and would frequently stop at the house to visit him and drink coffee. One morning, when Read arrived at the house, appellant, who was armed with a pistol, confronted Read in the front yard and demanded that Read show his gun. Read did not produce a gun, and appellant shot and killed him. Appellant called 911 and reported the shooting. Police responded and appellant was arrested. The day after Read was killed, appellant agreed to submit to two separate interviews by the police at the police station. The first interview was videotaped and the second interview was audiotaped. Both interviews, totaling over two hours, were played for the jury. During his interviews, appellant explained that Read mowed his parents' lawn. About one month after Read started mowing the lawn, someone burglarized their garage and appellant suspected Read. Then Read started coming by the house more often to visit with appellant's father, and would drive by several times a day. Read started bringing other people to appellant's house and appellant grew more and more suspicious of Read. One morning, Read opened the garage door around 4:00 a.m., came into the house and into his parents' bedroom and scared his mother. Read also agreed to purchase a riding lawnmower and trailer from appellant's father, but after he took possession of them, and before he finished making payments to appellant's father, he told appellant's family that someone stole the trailer. In the days before he shot Read, appellant became convinced that Read was coming to rob and kill his family. The night before he shot Read, he warned his family that Read was coming to rob and kill them. Appellant explained, "I had to tell my family, I had to beat it into their heads, this guy's coming, he's coming tonight, this morning, whatever. And he's going to try to kill us. He's either going to slit our throats, shoot us, whatever he has to do to get in, get this s___, and get out." Appellant also said he told his family, "[Read] doesn't care about us, so I'm not going to care about him when he gets here." Appellant explained to the detectives that he knew the police "could take care of it," but that he "could take care of it a little better" in his opinion because the police could only "arrest the guy, put him in jail for another ten years, let him out, and he'll do it again." Appellant decided to "get rid of this guy" so that Read could not hurt appellant's family or anyone else. As he continued to describe the events leading up to the shooting, appellant acknowledged that Read may not have actually planned to kill appellant and his family. Appellant explained that Read targeted his family because Read saw that appellant had a stash of marijuana at the house and must have thought appellant had a lot of cash stored at the house. Appellant called his brother-in-law and told him he thought Read was coming to rob his family. His brother-in-law agreed to come over and wait with him in the garage. Appellant warned his mother and sister that Read was coming to harm them, so his mother and sister left the house. Appellant told the detectives that when Read came to the house the next morning, appellant heard his father outside talking to Read. Appellant went outside as Read was starting to get back into his truck. Appellant confronted Read and repeatedly asked "who are you going to kill first?" According to appellant, Read "immediately, you know, turned ghost white, put his hands up as high as he could reach, and started shaking, his voice was shaking." Appellant demanded to see Read's gun. Read, who was unarmed, responded by yelling "call the police!" Appellant's father stood between the two men and yelled at appellant to put his gun down, but appellant stepped around his father and shot Read, who fell to the ground and died. Appellant did not testify at trial, but the defense called two psychiatrists to testify on his behalf. Both psychiatrists testified that appellant suffered from severe bipolar disorder. They disagreed, however, about whether or not, at the time of the murder, appellant knew that shooting Read was wrong. The jury was instructed on the definition of legal insanity, but implicitly rejected that defense and found appellant guilty of murder.Appellant's Insanity Defense
In his first issue, appellant argues that the evidence is factually insufficient to support the jury's implied rejection of his affirmative defense of insanity.Applicable Law and Standard of Review
The court of criminal appeals recently explained the affirmative defense of legal insanity as follows:Texas law, like that of all American jurisdictions, presumes that a criminal defendant is sane and that he intends the natural consequences of his acts. Texas law, like that of many American jurisdictions, excuses a defendant from criminal responsibility if he proves, by a preponderance of the evidence, the affirmative defense of insanity. This defense excuses the person from criminal responsibility even though the State has proven every element of the offense, including the mens rea, beyond a reasonable doubt. The test for determining insanity is whether, at the time of the conduct charged, the defendant-as a result of a severe mental disease or defect-did not know that his conduct was "wrong." Under Texas law, "wrong" in this context means "illegal." Thus, the question for deciding insanity is this: Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?Ruffin v. State, 270 S.W.3d 586, 591-92 (Tex.Crim.App. 2008) (citing Tex. Penal Code Ann. § 8.01) (other internal citations omitted). The ultimate determination of a defendant's sanity at the time of the offense lies within the exclusive province of the fact-finder; "[o]therwise the issue of sanity would be decided in the hospitals and not the courtrooms." Bigby v. State, 892 S.W.2d 864, 878 (Tex.Crim.App. 1994); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (with limited exceptions, jury is generally "the exclusive judge of the facts proved, and of the weight to be given to the testimony"). And because the issue is not strictly medical, expert witnesses, although capable of giving testimony that may aid the jury in its determination of the ultimate issue, do not dictate the determination of that issue. Bigby, 892 S.W.2d at 878. When we examine the sufficiency of the evidence to support a jury's rejection of an insanity defense, we review all of the evidence relevant to the issue to determine whether the judgment is so against the great weight and preponderance of the evidence that it is manifestly unjust. Id. at 875.
Analysis
It is undisputed that appellant had a history of severe depression and social anxiety, and that he was suffering from bipolar disorder, a severe mental disease, at the time of the offense. The disputed issue is whether the evidence established that appellant knew that shooting Read was wrong. Appellant notes that multiple witnesses testified that appellant was genuinely concerned for his family's safety and felt justified in shooting Read. Appellant also notes that the psychiatrist who testified that appellant did not know his conduct was wrong examined appellant the day after the offense, whereas the psychiatrist who testified that appellant knew that his conduct was wrong did not examine appellant until fifteen months after the offense. Appellant also argues that the evidence was factually insufficient to support the jury's implied rejection of his insanity defense because (1) the arresting officer gave somewhat inconclusive testimony about whether appellant or his father told the officer to take appellant to jail, and (2) appellant did not attempt to flee the scene or conceal any evidence. To support his argument, appellant cites Graham v. State, 566 S.W.2d 941 (Tex.Crim.App. 1978), in which the court noted that "[a]ttempts to conceal incriminating evidence and to elude officers can indicate knowledge of wrongful conduct." Id. at 951. In response, the State argues that the evidence is factually sufficient to support the jury's rejection of appellant's insanity defense. The State notes that the detectives who conducted appellant's recorded interviews both testified that appellant understood that his conduct was wrong. The State also argues that, although appellant may have believed he was morally justified in shooting Read, appellant made the following statement during his recorded police interview that demonstrates he knew society viewed his conduct as illegal:I mean, am I-am I right or am I wrong? Did I kill an innocent man, or did I do-I mean, did I-I know I shouldn't have killed somebody. I know it's not right to kill people, but I just looked at everything this guy has done. I've seen his record. You know, I just know that people like him don't change, okay. They just don't change.A detective asked appellant, "Do you understand that you shouldn't kill people?" Appellant responded, "Of course. Of course. I've never killed an animal before I killed [Read], believe it or not." Appellant also said that he knows that it looks to an average person like he "committed murder, he's nuts, he's out of control." At the end of the videotaped interview, appellant said,
I see the bigger picture. I see the greater good. . . . I killed the guy, I didn't murder him. But the point is, the greater good is that he is off the face of this planet and not in some jail rotting, okay. That's the greater good. And if you all don't see it, that's fine. I know you're law enforcement; I know you've got to go by the law, by the law of the land. And I've tried my best to do that, but this time I just couldn't do it. I just had to take it into my-take the matter into my own hand and make sure this guy couldn't hurt us, ever. So I did. You know he-I probably could have put him in jail, and he'd come back ten years later and kill me probably because he'd be so damn pissed. . . . What do you want me to do? The guy was on my property. I shot him. He might have had his hands up. I don't care if he had his hands up. I shot the guy and I'm not gonna lie about it. I killed the guy. I'm sorry he had to die. I didn't want this guy to die. I'm sorry he had to die. But he had to die for the protect-for the safety of me and my family and whoever else.We agree with the State that the evidence demonstrates that appellant knew that his conduct was illegal by societal standards. Our conclusion is bolstered by several other statements appellant made during his interviews. For example, during his second interview, the detectives asked appellant, "What kind of gun did [Read] have?" Appellant responded, "I have no idea. I never saw a gun on [Read]. I never saw a weapon on the guy." When the detectives told him that Read did not have a weapon, appellant said,
That's not good for me. He had a f___ing 5,000 pound truck. I guess I can use that against him. But [Read] is a piece of s___ anyway. He deserved to die. You all know it. . . . I know. There's no-there's no tangible evidence, but there's a lot of circumstantial, and that's all I need to protect my family. I understand what you're saying though. In the eyes of the law, I murdered that guy and he didn't put up a fight, and I just shot him, point blank, with two rounds, hollow points, and I'm a sorry son-of-a-b____, and I should to go jail for the rest of my life. That's what the law is going to say, but you can't always follow the f___ing law. I know that he deserved to die. I know that he was there to kill me and my family . . . It doesn't matter if he was going to kill us, you have evidence of that mother f___er breaking into Storm Lawn and Garden. I know you do.Although appellant repeatedly insisted that Read came to the house to kill him and his family, he also acknowledged that Read did not have a weapon and admitted, "I got out of line and I shot him before I saw the weapon. I knew I shouldn't have done that." Further, when one of the detectives said, "you knew when you pulled the trigger that it was against the law to kill someone," appellant responded,
I do not live by the law of the land anymore because I had tried that for so many years and it didn't work for me. I have tried to follow the law and follow all of the speed limits, but, s___, that s___ is set for the masses, to keep the masses in check. But there are those that break free from that s___ like me, you and you, you know. We break free and we do better because of it.These statements by appellant during his recorded interviews were introduced into evidence without objection and were played for the jury during trial. Having reviewed all of the relevant evidence, we conclude that the evidence is factually sufficient to support the jury's implied decision to reject appellant's insanity defense. See Ruffin, 270 S.W.3d at 591-92. We overrule appellant's first issue.
Jury Instruction on the Defense of Insane Delusion
In his second through fourth issues appellant challenges the trial court's decision to deny his requested jury instruction on the defense of insane delusion.The Requested Instruction
During the jury-charge conference, appellant's counsel requested an instruction and charge on the defense of insane delusion:[W]e would request . . . that the Court include an additional charge with regard to-to the concept of the defense of delusion as-with regard to a self-defense issue. And in particular, we would request that the Court give a charge with regard to if you believe from a preponderance of the evidence that as a result of a severe mental disease or defect, Dustan Brown was suffering from an insane delusion as to the facts existing which caused Dustan Brown to believe that James Read was in the course of conduct to-wit-such conduct which would cause Defendant to believe that it was reasonably necessary that-to use deadly force to prevent the other's imminent commission of burglary, robbery, aggravated robbery, theft during the nighttime, and that he reasonably . . . believes that the property cannot be protected by any other means, and that the use of force other than deadly force to protect or recover the-to protect the property would expose the actor or another to the substantial risk of death or serious bodily injury, or the actor believed that-excuse me-or that Dustan Brown believed that-that reasonable force-believed that deadly force was immediately necessary to protect the actor-to protect Dustan Brown against James Read's use or attempted use of deadly force, or James Read's use [sic] to prevent the immediate commission of aggravated robbery or robbery.
And if-then a-Judge, we would likewise request an application paragraph to that same degree. So fundamentally we're requesting the Court-the language is not so perfect, but fundamentally requesting the Court, from a delusional defense issue, with regard to defense of self, with regard to apparent danger, that he believed it was immediately necessary to use force to defend himself and/or other's [sic] against, and with regard to defense of property.In other words, as described by the State in its brief, appellant's counsel requested "an instruction authorizing the jury to find appellant not guilty if it found that, as a result of insane delusion, appellant believed it was reasonably necessary to use deadly force to prevent [Read's] imminent commission of burglary, robbery, aggravated robbery, theft during the nighttime, or use or attempted use of deadly force against [appellant] or his family." The State objected, and the trial court declined to charge the jury on the defense of insane delusion. Appellant did not request any other instruction, including an instruction on self-defense alone (outside the context of an insane delusion) or on mistake of fact.
Applicable Law and Standard of Review
Under Texas law, a trial judge must "instruct the jury on statutory defenses, affirmative defenses, and justifications whenever they are raised by the evidence." Walters v. State, 247 S.W.3d 204, 208-09 (Tex.Crim.App. 2007) (citing Tex. Penal Code Ann. §§ 2.03-.04 and Arnold v. State, 742 S.W.2d 10 (Tex.Crim.App. 1987)). When we review a complaint about jury-charge error, the question we must answer first is whether error actually occurred. See Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App. 1986). If we conclude that error occurred, we must determine whether sufficient harm was caused by the error to require reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If error was properly preserved by an objection to the charge, any harm, regardless of the degree, is sufficient to require reversal. Id.Analysis
The threshold issue here is whether the common-law defense of insane delusion is still an available defense in Texas because it is not listed among the statutory defenses and affirmative defenses in the penal code. The defense of insane delusion previously existed under Texas common law. The court of criminal appeals described it as follows:[O]ne who commits a crime while acting under an insane delusion is to be judged, so far as his criminal responsibility is concerned, precisely as if the facts which in his delusion he believes to be true were actually true, provided that the facts upon which the delusion was founded would, if actually existing, have justified or constituted a defense to the crime committed.Coffee v. State, 184 S.W.2d 278, 280 (Tex.Crim.App. 1944) (citing Alexander v. State, 8 S.W.2d 176, 181 (Tex.Crim.App. 1928) and Morris v. State, 255 S.W. 744, 747 (Tex.Crim.App. 1923)) (other citations omitted). Coffee, however, pre-dated the Texas legislature's enactment of the new penal code effective January 1, 1974. The issue we must resolve here is whether, in light of the penal code, a defendant is still entitled to an instruction on the common-law defense of insane delusion. Since the enactment of the penal code, at least three of our sister courts have apparently and implicitly presumed, without expressly deciding, that the insane-delusion defense is still viable despite the enactment of the penal code. See Miller v. State, 940 S.W.2d 810, 811-15 (Tex.App.-Fort Worth 1997, pet. ref'd) (evidence adduced at trial did not warrant instruction on defense of insane delusion under Coffee); Zwack v. State, 757 S.W.2d 66, 69-71 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd) (appellant not entitled to jury instruction on "self-defense which incorporated the factor of insane delusion" because delusional facts, even if true instead of delusion, would not constitute defense to crime charged); Conaway v. State, 663 S.W.2d 53, 55-56 (Tex.App.-Houston [1st Dist.] 1983, pet. ref'd) (jury charge failed to instruct jury on defense of insane delusion in accordance with Coffee but defendant's proposed special charge was insufficient to alert trial court of deficiency). We cannot simply presume it is still a viable defense. Although it has not addressed the common-law defense of insane delusion, the court of criminal appeals has explained that it is error not to examine the language of the penal code itself and to instead simply presume that "older common-law rules" pre-dating the 1974 penal code still control. Giesberg v. State, 984 S.W.2d 245, 248 (Tex.Crim.App. 1998). Further, in a dissenting opinion in another case involving a different issue, Judge Womack explained why Texas courts are generally precluded from instructing the jury on common-law defenses not recognized in the penal code:
[T]here is no common law of crimes in Texas. . . . [U]nder the laws of this State notice of an offense must invariably rest on a specific statute. . . . [O]ur Penal Code [] provides that "conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute." Penal Code, § 1.03(a).
The power to create and define offenses[,] which rests within the sound discretion of the legislative branch of government, necessarily includes the power to establish and define the defenses. When a statutory defense applies to the facts of a criminal case, a non-statutory defense is not available.
Furthermore, because the authority to establish what constitutes a defense rests solely with the Legislature, this Court concludes a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction. The term defense should not be used for an issue that has not been specifically labeled as such by the Legislature.
Therefore this Court cannot create, much less alter, a common law of criminal offenses or defenses.
State v. Medrano, 67 S.W.3d 892, 905 (Tex.Crim.App. 2002) (Womack, J., dissenting) (internal case quotations and citations omitted).
Statutory defenses and justifications are listed and described in chapters eight and nine of the penal code and they do not include the defense of insane delusion. We conclude that by omitting the common-law defense of insane delusion from the penal code, the legislature intended to eliminate this defense from the law and from jury charges. See generally id. at 214 ("Normally, if the instruction is not derived from the code, it is not `applicable law.'").
But even if it was still a viable defensive theory, we would conclude that appellant was not entitled to an instruction on insane delusion. The facts of the offense as stated by appellant would not have supported a charge on insane delusion because appellant acknowledged that Read did not have a gun, put his hands up, and was leaving when appellant shot and killed him.
Consequently, we conclude that appellant was not entitled to an instruction on insane delusion and that the court did not err by refusing to submit an instruction on it. We overrule appellant's second, third, and fourth issues.