Aschbacher v. State, 04-99-00406-CR

• Decision Date: 08 August 2001
• Docket Number: No. 04-99-00406-CR,04-99-00406-CR
• Parties: (Tex.App.-San Antonio 2001) Fredrick Edward ASCHBACHER, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 532

61 S.W.3d 532 (Tex.App.-San Antonio 2001)

Fredrick Edward ASCHBACHER, Appellant v. The STATE of Texas, Appellee

No. 04-99-00406-CR

Court of Appeals of Texas, San Antonio

August 8, 2001

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 1997-CR-5215 Honorable Pat Priest, Judge Presiding

[Copyrighted Material Omitted]

Paul J. Goeke, San Antonio, for appellant.

Scott Roberts, Assistant Criminal District Attorney, San Antonio, for appellee.

Sitting Phil Hardberger, Chief Justice, Alma L. Lopez, Justice, Karen Angelini, Justice

Opinion by Karen Angelini, Justice

Fredrick Edward Aschbacher was convicted of murder and sentenced to fifty-five years confinement. He appeals his conviction in five issues. We affirm.

Factual and Procedural Background

Aschbacher suffered from a delusional disorder. Because of his disorder, he developed a belief that Harold Leifeste was having an affair with his wife. Aschbacher also believed that Leifeste was the head of security at United Services Automobile Association and that Leifeste was monitoring his activities for the purposes of having him killed. Aschbacher feared alerting the police because of his belief that Leifeste had contacts within local law enforcement. There was, in fact, no basis for Aschbacher's delusional beliefs concerning Leifeste.

Aschbacher wrote threatening letters to Leifeste. After he was told to stay away from Leifeste, Aschbacher bought a pistol and designed a plan to kill Leifeste. In accordance with his plan, Aschbacher darkened his face and hid in the bushes outside Leifeste's home. As Leifeste left his house, Aschbacher shot him more than twenty times, killing him. Aschbacher then threw the gun onto Leifeste's roof, raised his hands over his head, and admitted to a witness that he shot Leifeste. Aschbacher fled the scene. However, once the police located him, they apprehended him peaceably. After he was arrested, Aschbacher made a statement to the police, admitting his guilt.

A jury found Aschbacher guilty of murder and the trial court sentenced him to fifty-five years confinement and assessed a $10,000 fine. Aschbacher appeals his conviction in five issues. Specifically, he asserts: (1) the evidence is factually insufficient to support the jury's guilty finding; (2) the trial court erred in sustaining the State's objection to his attempt to explain the circumstances regarding the hiring of one psychiatrist; (3) the trial court erred in failing to comply with Texas Code of Criminal Procedure, article 46.03; (4) the trial court erred in commenting upon the weight of the evidence; and (5) during the punishment phase, the trial court erred in overruling his objection to the prosecutor's argument.

Factual Sufficiency

In his first issue, Aschbacher challenges the factual sufficiency of the evidence supporting the jury's guilty finding. Essentially, he claims that the jury's rejection of his affirmative defense of insanity was so against the great weight and preponderance of the evidence as to be manifestly unjust and unfair.

We review the factual sufficiency of evidence supporting an affirmative defense to determine whether, after considering all the evidence relevant to the issue, the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App.1990).

To establish an insanity defense, the defendant must prove by a preponderance of the evidence that, at the time of the offense, he, as a result of severe mental disease or defect, did not know that his conduct was wrong. Tex. Penal Code Ann. § 8.01 (Vernon 1994); Torres v. State, 976 S.W.2d 345, 347 (Tex. App. Corpus Christi 1998, no pet.). The issue of insanity is not strictly a medical one. Graham v. State, 566 S.W.2d 941, 943 (Tex. Crim. App. 1978). "[E]xpert 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." Id. at 949. In fact, the jury may weigh other factors in assessing the issue of insanity. Specifically, a fact finder may consider the person's demeanor before and after the offense, any attempts to evade police or to conceal incriminating evidence, a person's expressions of regret or fear of the consequences of his or her actions, and possible motives for the offense. Torres, 976 S.W.2d at 347-48 (citing Schuessler v. State, 719 S.W.2d 320, 329 (Tex. Crim. App. 1986, en banc), overruled on other grounds, Merez, 785 S.W.2d at 155, Murray v. State, 182 S.W.2d 475, 477 (Tex. Crim. App. 1944), and Graham, 566 S.W.2d at 952). Similarly, surrendering to the police and confessing to the crime may be indications of a realization that the person knew the charged conduct was wrong. Plough v. State, 725 S.W.2d 494, 500 (Tex. App. Corpus Christi 1987, no pet.).

In support of his insanity defense, Aschbacher presented the following evidence. First, Zane Aschbacher, Aschbacher's brother, testified for the defense. He explained that he noticed a change in his brother's personality beginning in October of 1996. According to Zane, Aschbacher began to take very little interest in his family and was dissatisfied with his job. Zane discussed Aschbacher's belief that his wife was having an affair with Leifeste, claiming that he was skeptical regarding its truth. Zane stated that it was clear to him that Aschbacher was not well and that he recommended to Aschbacher that he seek help.

In addition, three psychiatrists testified on Aschbacher's behalf. The first to testify was Dr. John Sparks, Medical Director for Correctional Health Care Services. Dr. Sparks conducted a competency examination on Aschbacher. During the exam, Aschbacher was coherent, but disorganized, and extremely emotional at times. Based upon this exam, Dr. Sparks diagnosed Aschbacher to be suffering from a severe delusional disorder and was of the opinion that Aschbacher was not competent to stand trial. Although Dr. Sparks was not ordered by the court to conduct a sanity evaluation on Aschbacher, based upon his competency evaluation, Dr. Sparks developed an opinion about Aschbacher's mental state at the time of the shooting. Specifically, Dr. Sparks concluded:

[Aschbacher] was suffering from a severe mental disease, a delusional disorder at the time of the incident with which he's charged.

And I've talked to him several times since the initial interview. I have found him, too, without variation, tells me each time that he believes he did the right thing. And I believe he thinks he did the right thing. Therefore, it is my opinion that he was insane at the time.

Dr. Cesar Garcia also testified regarding Aschbacher's mental state. Dr. Garcia conducted a sanity evaluation on Aschbacher. Dr. Garcia diagnosed Aschbacher to be suffering from a severe delusional disorder and determined that, at the time of the charged conduct, Aschbacher did not believe that his conduct was wrong.

Dr. Michael Arambula testified on Aschbacher's behalf. Dr. Arambula met with Aschbacher, as well as members of Aschbacher's family, and reviewed Aschbacher's record in determining whether he suffered from a "psychiatric illness and whether in some way that psychiatric illness was related to the crime that [he] was charged with." Dr. Arambula determined Aschbacher had a delusional disorder and that "his thinking was psychotic." According to Dr. Arambula, "based upon [Aschbacher's] delusional beliefs, he believed his conduct was right."

Dr. Richard Coons, the State's witness,¹ similarly concluded that Aschbacher suffered from a severe mental disease. However, Dr. Coons determined that the disease did not prevent Aschbacher from knowing his conduct was wrong. Dr. Coons' conclusion was based on several factors. Particularly, Dr. Coons testified that Aschbacher told him that he expected to be arrested, tried, and convicted of the crime. Dr. Coons acknowledged that Aschbacher believed his actions were justified. According to Dr. Coons, the fact that Aschbacher knew he would be convicted and punished for his actions indicates he clearly understood his conduct was wrong, even though he may have felt his actions were justified.

Although the consensus among Aschbacher's experts was that he was unable to appreciate the wrongfulness of his conduct, Dr. Coons, the State's expert, concluded otherwise. According to Dr. Coons, Aschbacher understood the legal consequences of his actions. And, although his conduct before the murder was somewhat strange, his actions during and immediately following the killing indicate Aschbacher knew his conduct was wrong. See Torres, 976 S.W.2d at 347-48. Specifically, Aschbacher blackened his face and wore a hat in an attempt to conceal his identity. He attempted to discard the murder weapon by throwing the gun onto Leifeste's roof. As he left the murder scene, Aschbacher put his hands into the air and admitted to one witness to the shooting that he shot Leifeste. See Plough, 725 S.W.2d at 500. And later, he confessed that he killed Leifeste in a statement to the police. Id.

The record, in this case, clearly shows controverting evidence as to whether Aschbacher knew the difference between right and wrong. See Torres, 976 S.W.2d at 348; Plough, 725 S.W.2d at 499. The jury, therefore, reasonably could have resolved the conflicting evidence regarding legal insanity against Aschbacher. The jury's decision is not so against the great weight and preponderance of the evidence that it is manifestly unjust. Aschbacher's first issue is overruled.

Evidentiary Error

Aschbacher claims in his second issue that the trial court erred by sustaining the State's objection to his attempt to introduce evidence regarding the hiring of Dr. Coons. Aschbacher first complained about the circumstances of Dr. Coons' hiring during an in camera hearing. At the hearing, defense counsel explained to the court that Leifeste,...