Graham was decided before the legislature, in 1983, eliminated the second prong of section 8.01 of the Texas Penal Code, which allowed an accused to predicate insanity on her inability to conform her conduct to the dictates of the law. Even so, the statements of law contained in Graham relating to the nature of the insanity defense and the role of jury, lay witnesses and expert testimony in determining the ultimate issue of an accused's insanity are unaffected by the statutory change, and are cited extensively in Ward v. State, 787 S.W.2d 116 (Tex.App. — Corpus Christi 1990, pet. ref'd), and Patel v. State, 720 S.W.2d 891 (Tex.App. — Texarkana 1986) aff'd, 787 S.W.2d 410 (Tex.Crim.App. 1990). 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, are not capable of dictating determination of that issue.
On direct appeal the Sixth Court of Appeals, in a published per curiam opinion, affirmed the conviction. Patel v. State, 720 S.W.2d 891 (Tex.App. — 6 Dist, 1986). On evaluating the sufficiency of the evidence on the appellant's affirmative defense of insanity, the Court of Appeals utilized two standards of review: (1) the Van Guilder standard, Van Guilder v. State, 709 S.W.2d 178 (Tex.Cr.App. 1985), and (2) a factual sufficiency review to determine if the verdict was against the great weight and preponderance of the evidence.
The cases upon which he relies address issues of sufficiency of the evidence in an appeal following a jury trial; none involve a waiver of jury trial. See Graham v. State, 566 S.W.2d 941, 948 (Tex.Crim.App. 1978); Wenck v. State, 156 Tex. Crim. 50, 55, 238 S.W.2d 793, 796 (1951); Taylor v. State, 856 S.W.2d 459, 468 (Tex.App.-Houston [1st Dist.] 1993), aff'd, 885 S.W.2d 154 (Tex.Crim.App. 1994); Ward v. State, 787 S.W.2d 116, 119 (Tex.App.-Corpus Christi 1990, pet. ref'd); Patel v. State, 720 S.W.2d 891, 897 (Tex.App.-Texarkana 1986), aff'd, 787 S.W.2d 410 (Tex.Crim.App. 1990). Citing White v. White, 108 Tex. 570, 196 S.W. 508 (1917), Watts argues that the Legislature cannot by statute deprive the accused of a jury trial on the issue of insanity.
Among those circumstances are: lay testimony as to the lucidity of the defendant prior to the commission of the crime, testimony regarding other possible motives for committing a crime, other explanations for erratic behavior, attempts to "eliminate" witnesses or evade police, attempts to conceal incriminating evidence, and expressions of regret for an act and fear of consequences. See e.g. Schuessler, 719 S.W.2d at 330; Graham, 566 S.W.2d at 951-52; Murray v. State, 147 Tex.Crim. 474, 182 S.W.2d 475, 477 (1944); Love, 909 S.W.2d at 930; Patel v. State, 720 S.W.2d 891, 897 (Tex.App. — Texarkana 1986), aff'd, 787 S.W.2d 410 (Tex.Crim.App. 1990). Such circumstances, in my view, are not present in this case.
A motion for mistrial must be pressed to the point of procuring a ruling or it is waived. Turner v. State, 719 S.W.2d 190 (Tex.Crim.App. 1986); Patel v. State, 720 S.W.2d 891 (Tex.App. — Texarkana 1986), aff'd, 787 S.W.2d 410 (Tex.Crim.App. 1990); TEX.R.APP.P. 52(a). Nothing is presented for review. For the reasons stated, the judgment is affirmed.
Drew v. State, 743 S.W.2d 207 (Tex.Crim.App. 1987). Even if the argument is improper, it is cured by a prompt instruction to the jury to disregard it, unless it is so inflammatory that its prejudicial effect cannot be removed by such an instruction. Melton v. State, 713 S.W.2d 107 (Tex.Crim.App. 1986); Patel v. State, 720 S.W.2d 891 (Tex.App. — Texarkana 1986, pet. granted). The challenged statement here occurred while the prosecutor, during closing argument, was commenting about Kenneth's grief over the death of his wife: