Baker v. State

• Decision Date: 15 January 1986
• Docket Number: No. 135-85,135-85
• Citation: 707 S.W.2d 893
• Parties: James Earl BAKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 893

707 S.W.2d 893

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

No. 135-85.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 15, 1986.

Rehearing Denied April 23, 1986.

Herb Ritchie, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and James C. Brough and Casey O'Brien, Asst. Dist. Attys., Houston, Robert Huitash, State's Atty., Alfred Walker, First Asst., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

A jury found appellant guilty of attempted murder and the court assessed ten years. The First Court of Appeals (Houston) reversed and remanded for a new trial in a published opinion, holding that the jury's implied finding that appellant was not insane was so against the great weight and preponderance of the evidence as to be manifestly unjust. Baker v. State, 682 S.W.2d 701 (1984). We granted the State's petition for discretionary review to examine this holding.

Appellant claims that he established the affirmative defense of insanity as a matter of law. The Court of Appeals treated his claim to be that the verdict rejecting his affirmative defense of insanity was against the great weight and preponderance of the evidence.

In applying the "great weight and preponderance" standard, the Court of Appeals reasoned as follows:

"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 (Tex.1951)."

Since the Court of Appeals handed down its opinion in the instant case, we have rejected the argument that the Texas Constitution and the Code of Criminal Procedure confer jurisdiction on the Courts of Appeals to consider great weight and preponderance of the evidence fact questions in cases involving the affirmative defense of insanity. Van Guilder v. State, --- S.W.2d ---- (No. 899-84, delivered November 6, 1985). In Van Guilder, supra, we held that:

"... in reviewing a case involving an affirmative defense, the court of appeals must review the evidence on the affirmative defense by looking at the evidence in the light most favorable to the implicit finding by the jury with respect to such affirmative defense and then determine, by examining all the evidence concerning the affirmative defense, if any rational trier of fact could have found that the defendant failed to prove his defense by a preponderance of the evidence. The court of appeals is limited in its review using this preponderance standard to evidence submitted on the issue of the affirmative defense in question. This review is called for when the defendant is contesting the sufficiency of the evidence to support his conviction because of his assertion that he adequately proved his affirmative defense.... There must be no reweighing or reclassifying of the evidence by the appellate court."

Because the Court of Appeals applied a standard we have rejected in assessing appellant's claim, we reverse the judgment of the Court of Appeals and remand the case to that court to apply the standard set out in Van Guilder, supra. ¹

CLINTON, J., concurs in result.

State's motion for rehearing denied without written opinion.

ONION, P.J., joined by CLINTON and McCORMICK, JJ., dissent.

ONION, Presiding Judge, dissenting.

The majority overrules the State's Motion for Rehearing without written opinion. I dissent.

Appellant was convicted of attempted murder and his punishment was assessed by the court at 10 years' imprisonment. On appeal the appellant claimed he established the affirmative defense of insanity, V.T.C.A., Penal Code, § 8.01, as a matter of law. The Court of Appeals treated his claim to be that the jury verdict finding him guilty of attempted murder and rejecting his affirmative defense of insanity was against the great weight and preponderance of evidence. That court held that the jury's implied finding that appellant was not insane was so against the great weight and preponderance of evidence as to be manifestly unjust. Baker v. State, 682 S.W.2d 701 (Tex.App.-Houston [1st] 1984).

On original submission this Court held that the Court of Appeals erred in applying the "great weight and preponderance" standard and that the proper standard of review was that set forth in this Court's opinion of Van Guilder v. State, --- S.W.2d ---- (Tex.Cr.App. No. 899-84--11/6/85). The cause was remanded to the Court of Appeals to apply the standard set out in Van Guilder, supra.

I concurred in the result reached in Van Guilder, a most unusual situation, but I do not agree with the standard there set forth, nor with the "great weight and preponderance of the evidence" standard in criminal cases.

The Van Guilder standard thrusts this Court into the role of factfinder in resolving evidentiary conflicts as does the "great weight and preponderance of the evidence" standard to the Court of Appeals when applied in criminal cases.

The Van Guilder decision erroneously applies the holding of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1966), to the review of an affirmative defense in a criminal case.

The Legislature's lawmaking authority includes the right to define crimes and fix penalties therefor. Article III, § 1, Texas Constitution; Baker v. State, 70 Tex.Cr.R. 618, 158 S.W. 998 (Tex.Cr.App.1913); McNew v. State, 608 S.W.2d 166, 176 (Tex.Cr.App.1980) (Opinion on rehearing). In defining crimes the Legislature establishes the elements of the offense.

In the instant case the appellant was charged with attempted murder in the terms prescribed by the Legislature.

V.T.C.A., Penal Code, § 19.02 (Murder), provides in part:

"(a) A person commits an offense if he:

"(1) intentionally or knowingly causes the death of an individual."

V.T.C.A., Penal Code, § 6.03 (1974), provides in part:

"(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscientious objective or desire to engage in the conduct or cause the result.

"(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result."

V.T.C.A., Penal Code, § 15.01 (Criminal Attempt), provides:

"(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

"(b) If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.

"(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.

"(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a felony of the third degree, the offense is a Class A misdemeanor." (Acts 1975, 64th Leg., p. 478, ch. 203, § 4, eff. Sept. 1, 1975.)

If an individual is charged by indictment or information with a criminal offense, the burden of proof is upon the State to prove him guilty of each element of the offense beyond a reasonable doubt. V.T.C.A., Penal Code, § 2.01; Article 38.03, V.A.C.C.P.

Section 2.01, supra, provides:

"All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

V.T.C.A., Penal Code, § 2.04 (Affirmative Defense), provides:

"(a) An affirmative defense in this code is so labeled by the phrase: 'It is an affirmative defense to prosecution....'

"(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging the commission of the offense.

"(c) The issue of the existence of an affirmative defense is not submitted to the jury unless the evidence is admitted supporting the defense.

"(d) If the issue of the existance of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence."

V.T.C.A., Penal Code, § 8.01 (1983),...