Evilsizer v. State

• Decision Date: 01 November 1972
• Docket Number: No. 45198,45198
• Citation: 487 S.W.2d 113
• Parties: Charles Bartling EVILSIZER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 113

487 S.W.2d 113

Charles Bartling EVILSIZER, Appellant, v. The STATE of Texas, Appellee.

No. 45198.

Court of Criminal Appeals of Texas.

Nov. 1, 1972.

Rehearing Denied Dec. 13, 1972.

Emmett Colvin, Jr., Don J. Metcalf, Dallas, for appellant.

Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of murder; punishment was assessed by the jury at life.

The record reveals that on November 15, 1967, ¹ appellant and deceased, the aunt of appellant's estranged wife, were talking in the front yard of deceased's home in Dallas. Following a brief argument, deceased struggled with appellant and shouted to a neighbor, 'look out, he's got a gun.' During the struggle deceased fell to the ground and appellant put a gun to her head, and said, 'This will shut you up, damn you.' He then shot her and she died from the gun shot wound. Appellant then left in his car. Early the following morning appellant was arrested at his home, where a bloody shirt was found. Later, a .25 caliber hull was found in appellant's car which was parked a block from the scene of the killing.

Appellant testified in his own behalf and stated: that during World War II he received a blow on the head; that since 1946 he has had a drinking problem; and that he received a blow to the head from a pipe in 1966. He testified that on the day of the killing he borrowed a .25 caliber pistol to go deer hunting; that he consumed around eight beers, two highballs, and 'quite a bit' of a fifth of bourbon. He further stated that about 5:30 P.M. he called deceased to talk with his estranged wife; that deceased refused to allow him to talk to her and hung up. From that time until awaking after dark, sometime between 6:00 and 11:00 P.M., he had no memory of events.

Appellant called a psychiatrist who testified that, in his opinion, the appellant was suffering from a chronic brain syndrome known as Korsakov's syndrome on the day of the offense and did not know the difference between right and wrong. He testified that, in his opinion appellant's prolonged, immoderate use of alcohol over a period of years had given him the syndrome. He further testified that '. . . it is possible that his dietary habits could have produced this (syndrome) without his alcohol. I think it is less likely that it would have without the alcohol.' The psychiatrist testified that the usual symptom of chronic brain syndrome is that 'a person becomes more and more sensitive to alcohol or other intoxicating substances;' that he suffers periods of amnesia and will create in his mind facts and situations that may or may not exist, to fill in the gaps created by the amnesic periods; that through this process, a person suffering from the syndrome may act irrationally. It was his conclusion that appellant was insane on the date of the offense, but 'entirely sane' as of the date of the trial.

The state produced two psychiatrists who testified that appellant was in their opinion sane both at the time of the offense and at the time of trial.

The court included in its charge an instruction on insanity, ² but refused appellant's requested special instruction which included:

'. . . if the accused is in any degree mentally impaired or infirm, and such impairment or infirm condition of his mind was stimulated or aggravated by the use of intoxicants to such an extent as to cause the accused to become temporarily insane, . . . then such temporary insanity if found by the jury by a preponderance of evidence, to have existed at the time of the commission of the offense or offenses, will excuse or justify the act or acts alleged to have been committed by the accused.'

Appellant's ground of error relates to the trial court's charge. His complaint is two-fold: first, that the court erred in denying his requested instruction; and second, that the court erred in charging the jury on the provisions of Article 36, Vernon's Ann.P.C.

In his first assertion, appellant argues that an instruction, similar to the one he requested, was given in Bryant v. State, 122 Tex.Cr.R. 385, 55 S.W.2d 1037, and that therefore it was error to deny his requested instruction in the case at bar. We do not interpret Bryant as holding that the instruction given there was required under the facts of that case. The case merely stands for the proposition that such an instruction Did not injure the appellant. ³

The question presented by appellant is whether temporary insanity, produced by the combined effect of a pre-existing, weakened condition of the mind and the recent consumption of intoxicants, constitutes a defense to murder with malice.

The record here in relevant respects fairly duplicates that considered by this court in Chapman v. State, 136 Tex.Cr.R. 285, 124 S.W.2d 112. Therein, the defendant sought to have the jury instructed that if they believed defendant had syphilis, and if they also believed that such disease, coupled with the recent use of intoxicants, produced a state of temporary insanity, the verdict should be not guilty. In overruling the request, this court stated, at pages 115--116:

'Although it may be conceded that he had syphilis, if this alone did not produce temporary insanity, but the voluntary recent use of ardent spirits in addition thereto caused him to become temporarily insane, then the recent use of ardent spirits would be the direct and immediate cause of the claimed insanity, but for which he would not have been temporarily insane.

'Consequently it follows that although he may have had syphilis or may have been in a weakened physical condition due to some other cause, yet if the recent use of ardent spirits was the primary cause which produced the temporary insanity, he would be in the same condition, in the eyes of the law, as a healthy, robust man who indulged in the use of ardent spirits and as a result became temporarily insane. It may be true that a person affected with syphilis is more susceptible to intoxication. This, however, would not constitute any defense, but under the law might be considered by the jury in mitigation of the punishment to be assessed.'

We therefore hold that, if the pre-existing condition of mind of the accused is not such as would render him legally insane in and of itself, then the recent use of intoxicants causing stimulation or aggravation of the pre-existing condition to the point of insanity cannot be relied upon as a defense to...