Baker v. State, 01-84-00028-CR

• Decision Date: 20 December 1984
• Docket Number: No. 01-84-00028-CR,01-84-00028-CR
• Citation: 682 S.W.2d 701
• Parties: James Earl BAKER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 701

682 S.W.2d 701

James Earl BAKER, Appellant, v. The STATE of Texas, Appellee.

No. 01-84-00028-CR.

Court of Appeals of Texas Houston (1st Dist.).

Dec. 20, 1984.

Herb Ritchie, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., James C. Brough, Casey O'Brien, Harris County Asst. Dist. Attys., Houston, for appellee.

Before DUGGAN, DOYLE and LEVY, JJ.

OPINION

DUGGAN, Justice.

After a jury rejected appellant's defense of insanity and found him guilty of attempted murder, the court assessed his punishment at ten years confinement. Appellant urges six grounds of error on appeal.

The evidence is undisputed both as to appellant's eight-year history of mental illness prior to the offense charged, and as to his conduct on that occasion.

The complainant, Roy Wayne Baker, the appellant's 21 year old brother, testified that on April 4, 1983, he and the 28 year old appellant were alone in their parents' home watching television in the living room in the late morning. Appellant asked Roy if he could see the hunting knife which Roy wore sheathed in a holster on his belt. Roy handed over the knife and appellant sat nearby, opening and closing the weapon for five to ten minutes. He finally closed the knife, placed it on the coffee table, and left the room. Roy then lay down on the living room floor, continued to watch television, and fell asleep. He was awakened when appellant stabbed him with the knife in the stomach. Roy looked up to see appellant standing about two feet from him. Appellant said nothing, walked toward the door, turned and looked back at Roy as he walked out the door, and left the house. With the knife stuck in his stomach, Roy crawled to the telephone and called a neighbor, who came immediately to the Baker home and administered first aid until paramedics arrived and took Roy to a hospital. Following surgery, Roy was hospitalized for more than two weeks.

At about midnight, approximately 12 hours after the stabbing, appellant phoned the Houston Police Department, told them he had stabbed his brother, and asked them to meet him at a restaurant parking lot some four to six miles from his family's home. When the two officers who were dispatched arrived at the parking lot at about 12:30 a.m. April 5th, appellant approached them, identified himself as the person who had called for them, and surrendered himself. The officers took him into custody and waited with him at the restaurant location outside the city limits until a sheriff's deputy arrived and took custody of appellant.

Appellant did not testify at trial, where his defense was limited to the issue of insanity.

In his first two grounds of error, appellant urges that the trial court erred in overruling both his motion for instructed verdict and his motion for judgment non obstante veredicto because his affirmative defense of insanity "was proven as a matter of law." Because of this legal insufficiency, appellant asserts he is entitled to a reversal and entry of a judgment of acquittal.

In his third ground of error, appellant urges that the trial court abused its discretion in failing to grant a new trial, the trial judge having stated at the conclusion of appellant's motion for new trial hearing that the verdict was against the great weight and preponderance of the evidence. We consider appellant's complaint to be not only that the court abused its discretion, but also that the verdict rejecting appellant's affirmative defense of insanity was against the great weight and preponderance of the evidence, entitling him to a reversal of the conviction and a remand for retrial.

Prior to the creation of the courts of appeals, and their investiture with criminal appellate jurisdiction, a defendant who failed to receive a favorable jury finding on the issue of insanity was restricted on appeal to the Court of Criminal Appeals to the assertion of the ground that he had established his defense as a matter of law. That court was without jurisdiction to entertain a factual challenge that the jury verdict was contrary to the great weight and preponderance of the evidence. Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982); White v. State, 591 S.W.2d 851, 854-55 (Tex.Crim.App.1979).

Under the provisions of the 1980 amendment to art. V, sec. 6 of the Texas Constitution, effective September 1, 1981, the courts of appeals are vested with conclusive authority over all questions of fact presented on appeal. Consistent with that mandate, Tex.Code Crim.P. art. 44.25 (Vernon Supp.1984), likewise effective September 1, 1981, provides that "courts of appeals ... may reverse the judgment in a criminal action, as well upon the law as upon the facts."

We interpret this grant of authority to mean, as at least two other courts of appeals have already determined, that we have jurisdiction to consider great weight and preponderance fact questions in cases involving the affirmative defense of insanity. Van Guilder v. State, 674 S.W.2d 915 (Tex.App.--San Antonio 1984, no pet.); Schuessler v. State, 647 S.W.2d 742 (Tex.App.--El Paso 1983, pet. granted).

In passing on a challenge that a jury finding is against the great weight and preponderance of the evidence, the reviewing court is to consider all the relevant evidence presented. If after doing so it determines that the defendant at trial carried his burden of proof as to an affirmative defense and that the jury's verdict was manifestly unjust, the reviewing court has the duty to reverse the trial court judgment and remand the case for new trial, regardless of whether the record contains some evidence of probative force in support of the verdict. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Insanity is an affirmative defense upon which the defendant has the burden of proof by a preponderance of the evidence. Tex.Penal Code Ann. sec. 8.01(a) and sec. 2.04(d) (Vernon Supp.1984); Graham v. State, 566 S.W.2d 941, 943 (Tex.Crim.App.1978). It is not necessary for the state to present expert medical testimony that a defendant is sane in order to counter defense expert witnesses, and lay witness testimony may be accepted over that of experts. Graham, supra. However, with the establishment of factual review authority in the courts of appeals, if the affirmative defense of insanity is raised by credible evidence, the state must either negate the defense or risk the establishment of the defendant's burden of proof either as a matter of law or as a matter of fact, i.e., by the great weight and preponderance of the evidence. Tex.Penal Code art. 2.04(d); Van Guilder, 674 S.W.2d 915; Schuessler, 647 S.W.2d 742; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.

The defense introduced medical records showing appellant's eight-year course of hospitalization and treatment for severe mental illness beginning in 1975, including four admissions to the Harris County Psychiatric Hospital and five periods of treatment at Austin State Hospital, interspersed with treatment at Harris County Mental Health and Mental Retardation Authority (MHMR) outpatient programs and the facilities of the Texas Research Institute for Mental Science in Houston. Appellant was diagnosed on every entry and discharge report as paranoid schizophrenic. Typical of hospital summary sheets introduced was the Austin State Hospital admission diagnosis of January 4, 1980, upon the third of appellant's five admissions there:

[H]istory of severe paranoid schizophrenia symptoms since age 21. He has been hospitalized on numerous occasions, responds fairly well to medication but does not continue outpatient treatment ... [Diagnosis:] Schizophrenia Paranoid Type.

The state agreed with a summary in appellant's brief of the findings of the appellant's hospital records:

Voluminous records were entered into evidence which documented Appellant's treatment at four different mental institutions. Hospital summary sheets, read into evidence, revealed that Appellant was plagued by voices and hallucinations, that he screamed, laughed or cried at totally inappropriate times, and that he believed himself to be God.

Mr. Rob Olsen, appellant's clinic caseworker, testified that appellant was first admitted to the MHMR's Northwest Clinic in September 1975, and had attended the clinic "off and on" for eight to nine years; that he first became appellant's caseworker in November 1979; that at the time of the stabbing, appellant had been enrolled for about one year, or since May 1982, in the clinic's "day hospital program," a 2 1/2 hour-per-day, four-day-a-week program for "chronic, high risk patients" who, if they did not receive such clinic treatment, would likely require a hospital setting at some point. The program provided group therapy, recreation, exercise, and medication (appellant was on a "relatively high" dosage of Haldol, a tranquilizer).

Olsen observed appellant's behavior over a 3 1/2 year period, both during individual counseling and therapy sessions and while appellant was in the waiting area. Appellant typically showed one of two types behavior: quiet and withdrawn, or angry. Appellant's moods could change rapidly and Olsen had seen appellant have unprovoked verbal outbursts on some 20 to 30 occasions. Appellant was delusional and subject to hallucinations, and Olsen observed him on occasions talking to a tatoo on his hand, and many times simply sitting alone talking to himself. He would "temporarily get anxious in situations where he didn't have a real day-to-day familiarity with something," such as when he was uncomfortable about his sister coming to visit the family and "took off" to El Paso for two to three weeks.

While records showed that appellant last appeared at the clinic March 22, 1983, 13 days before the stabbing incident, Olsen was "pretty certain" he was there later than that. Although appellant was one of the four or five "most severely ill" of his 40 or 50 patient caseload, Olsen never saw appellant do violence to...