Manning v. State

• Decision Date: 29 April 1987
• Docket Number: Nos. 001-86,s. 001-86
• Citation: 730 S.W.2d 744
• Parties: Keith Dwight MANNING, Appellant, v. The STATE of Texas, Appellee. to 005-86.
• Court: Texas Court of Criminal Appeals

Page 744

730 S.W.2d 744

Keith Dwight MANNING, Appellant, v. The STATE of Texas, Appellee.

Nos. 001-86 to 005-86.

Court of Criminal Appeals of Texas En Banc.

April 29, 1987.

Michael Byck, Tena M. Hollingsworth, Lawrence B. Mitchell on appeal only, Dallas, for appellant.

John Vance, Dist. Atty. & Gary A. Moore, Elizabeth L. Phifer, Stephen Miller & Marcus Busch, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury at a pretrial competency hearing found appellant competent to stand trial. Appellant was subsequently convicted of attempted murder and assessed punishment at confinement for life. The Dallas Court of Appeals affirmed the conviction. Manning v. State, 704 S.W.2d 825 (Tex.App.--Dallas 1985).

In response to an issue discussed by the dissenting justice, the majority opinion of the Court of Appeals held that the facts adduced at the competency hearing did not clearly show a prior, unvacated adjudication of incompetency so that the burden to prove competency shifted to the State. Further, the court held that even if a prior, unvacated adjudication of incompetency was shown, the trial court's instruction to the jury was correct because it instructed the jury that "[t]he burden of proof of competency is upon the State to prove the defendant's competency by preponderance of the evidence; that is, by the greater weight of the credible testimony."

The dissent agrees that the charge correctly placed the burden of proof on the State, but, the dissent argues that the standard should have been proof beyond a reasonable doubt, not a preponderance of the evidence. Cf. also Villarreal v. State, 699 S.W.2d 364 (Tex.App.--San Antonio 1985); Martin v. State, 714 S.W.2d 356 (Tex.App.--Corpus Christi 1986).

We granted appellant's petition for discretionary review to consider whether the trial court's charge was correct in instructing the jury that the State must prove competency by a preponderance of the evidence. In conjunction with this issue, we granted review to consider whether a prior, unvacated adjudication of incompetency was shown.

From earliest times, this Court has held that the general rule in Texas is that "where insanity is set up in the trial of a case to avoid punishment for an act charged to be criminal, the presumption is that he [the defendant] is sane, and the burden of proof is on him to show by preponderance of evidence that he is insane." Witty v. State, 69 Tex.Cr.R. 125, 153 S.W. 1146, 1147 (1913). ¹ The rule in Texas is also well settled that wherever insanity has been shown to exist, as by a prior judgment of the court, the presumption is that the insanity continues and the burden is upon the State to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. Wisdom v. State, 42 Tex.Cr.R. 583, 61 S.W. 926 (1901); Wooten v. State, 51 Tex.Cr.R. 430, 102 S.W. 416 (1907); Morse v. State, 68 Tex.Cr.R. 351, 152 S.W. 927 (1913); Witty, supra; Davidson v. State, 109 Tex.Cr.R. 251, 4 S.W.2d 74 (1928); Glover v. State, 125 Tex.Cr.R. 605, 69 S.W.2d 136 (1934); Kizer v. State, 130 Tex.Cr.R. 185, 92 S.W.2d 439 (1936); Herring v. State, 141 Tex.Cr.R. 281, 148 S.W.2d 416 (1941); Murray v. State, 147 Tex.Cr.R. 474, 182 S.W.2d 475 (1944); Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612 (1952); Nilsson v. State, 477 S.W.2d 592 (1972), citing Murray, supra; cf. Thompson v. State, 612 S.W.2d 925 (1981), citing Morse, supra.

The issue of sanity arises in two situations--sanity at the time of commission of the offense; and sanity at the time of trial--"present sanity" or competency. While this Court sometimes recognized the different and distinct mental concepts applicable to each form of sanity, Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020 (1922), and Witty, supra, the distinction often went unmentioned in earlier cases. The two forms were often discussed together as forms of "sanity" that were treated similarly except for the fact they occurred at different times. See V.T.C.A., Penal Code, Art. 34 (1925); Art. 932b, V.A.C.C.P. (1925); Art. 46.02, V.A.C.C.P. (1965). The same rules as to burden shifting and standard of proof that applied to sanity at the time of the offense also applied to "present sanity." No distinction was made between the two in regard to burdens of proof or burden shifting. Dawson v. State, 150 Tex.Cr.R. 465, 203 S.W.2d 231 (1947); Morrow v. State, 154 Tex.Cr.R. 21, 224 S.W.2d 481 (1949); Witty, supra; McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707 (1951).

The careful trial court placed the burden of proof upon the State to show beyond a reasonable doubt not only that appellant was sane at the time of the alleged offense, but also at the time of the trial, on account of the fact that he had been found insane in the Tarrant County Court on September 25, 1940. We think such instruction was a correct proposition of law. See Gunter v. State, 139 Tex.Cr.R. 145, 139 S.W.2d 116 [ (1940) ]; Herring v. State, 141 Tex.Cr.R. 281, 148 SW.2d 416 [ (1941) ].

Morrow, supra, 224 S.W.2d at 485.

Indeed, under early cases a prior, unvacated adjudication of insanity, regardless of the "type" of insanity found--whether general insanity or "present insanity,"--shifted the burden of proof to the State to prove sanity at the time of the offense and sanity at the time of trial, beyond a reasonable doubt. McGee, supra; Morrow, supra; Dawson, supra. No distinction was made in terms of the applicability of the presumption of insanity and the burden shifting between a prior judgment of "present sanity" and a prior judgment of sanity at the time of the offense. This was so because the presumption of insanity "arose" once a prior, unvacated adjudication of insanity was shown, regardless of the "type" of insanity, and the accused was presumed continuously insane from the time of judgment onward unless the judgment was set aside or legally vacated in any way. Witty, supra; Davidson, supra; Glover, supra. ²

This blurred distinction between sanity and incompetency was still reflected in the statutes. Article 46.02, V.A.C.C.P., enacted in 1965, contained provisions for raising both incompetency and insanity at the time of the offense. Art. 46.02 was titled "Insanity in Defense or in bar". The procedural rules for competency and sanity were combined in this one statute. The common law rules concerning the burden shifting remained the same.

In 1973, insanity was separately codified when V.T.C.A. Penal Code, § 8.01 was enacted, characterizing insanity at the time of the conduct charged as an affirmative defense, thus requiring the defendant to prove insanity by a preponderance of evidence. See V.T.C.A. Penal Code, § 2.04. As the Practice Commentary to § 8.01 notes, this characterization of insanity as an affirmative defense "preserves the burden of proof that previously existed on the issue, e.g. McGee v. State, , 238 S.W.2d 707 (Cr.App.1950), ..." V.T.C.A. Penal Code, § 8.01, Practice Commentary. Criminal cases began to distinguish prior adjudications for sanity from those for incompetency. Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973); Nichols v. State, 501 S.W.2d 333 (Tex.Cr.App.1973).

In 1975 the Legislature further separated incompetency and insanity by separate provisions in the Code of Criminal Procedure. Art. 46.02 was titled "Incompetency to Stand Trial." Art. 46.03 was labeled "Insanity Defense." In 1977, Art. 46.02, § 1(b) was added, and, consistent with common law, stated:

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

The presumption and burden of proof for insanity had previously been codified in § 8.01. Thus, insanity and incompetency were recognized by separate statutes as similar but distinct issues of mental status with different definitions and legal ramifications. The same burden shifting rules established by common law still applied, but only within each "type" of sanity. For example, a prior finding of incompetency shifted the burden to the State only as to incompetency. A prior adjudication of insanity shifted the burden to the State for insanity, not incompetency. Ainsworth supra; Nichols, supra; Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.1976); Graham v. State, 566 S.W.2d 941 (Tex.Cr.App.1978); Thompson v. State, 612 S.W.2d 925 (Tex.Cr.App.1981). The common law rules governing the standard of proof and the burden of proof, which were identical for insanity and incompetency, were preserved and codified. See § 8.01 and Art. 46.02, § 1(b). The burden shifting rules were not codified. However, they remained applicable. As Justice Howell points out in his dissent, Art. 1.27, V.A.C.C.P. provides:

If this code fails to provide a rule of procedure in any particular state of case which may arise, the rules of common law shall be applied and govern.

As discussed, the case law through the years is fairly clear that a defendant has the burden of proving by a preponderance of the evidence, his incompetency to stand trial or his insanity at the time of the offense. Cf. § 8.01 and Art. 46.02, § 1(b). Case law is also clear that the burden of proof shifts to the State if a prior, unvacated adjudication of incompetency or insanity is shown. Cf. Graham, supra; Paul, supra; Nichols, supra. We hold, consistent with common law, that if such prior adjudication for incompetency is shown, the State must then prove the accused's competency to stand trial beyond a reasonable doubt. Likewise, if a prior, unvacated adjudication of insanity is shown, the State must prove the accused's sanity at the time of the offense beyond a reasonable doubt. ³

While the Court of Appeals may be correct that such a burden on the State is not constitutionally mandated, neither is a lesser burden mandated. Cf. U.S. v. Makris, 535 F.2d...