Olivier v. State, A14-91-00745-CR

• Decision Date: 11 March 1993
• Docket Number: No. A14-91-00745-CR,A14-91-00745-CR
• Citation: 850 S.W.2d 742
• Parties: Marie Claudia OLIVIER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 742

850 S.W.2d 742

Marie Claudia OLIVIER, Appellant, v. The STATE of Texas, Appellee.

No. A14-91-00745-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 11, 1993.

Rehearing Denied April 1, 1993.

Allen C. Isbell, Houston, for appellant.

Karen A. Clark, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellant, Marie Claudia Olivier, appeals her judgment of conviction for the offense of murder. TEX.PENAL CODE ANN. § 19.02 (Vernon 1989). The jury rejected appellant's not guilty plea by reason of insanity and assessed punishment at twenty (20) years confinement in the Institutional Division of the Texas Department of Criminal Justice. We reverse the trial court's judgment and remand for a new trial.

Appellant brings two points of error on her appeal. She asserts that her conviction should be reversed because the verdict which implicitly rejected her affirmative defense of insanity, is so against the great weight and preponderance of the evidence as to be manifestly unjust. She also claims that the trial court committed error by allowing the prosecutor to mislead the venire into believing the insanity defense requires proof that the mental condition caused the criminal act.

This is a case where appellant, in a psychotic episode highly charged with delusions and hallucinations, kills her 14 month old infant child, Amelia Leona Olivier. The assistant medical examiner, Vladimir M. Parungao, testified that the injuries to the infant's head would be consistent with her head being beaten against a wall. He also stated that the abrasions and contusions found around the neck area would be consistent with someone placing their hands around her neck in a choking-type fashion.

Appellant presented the affirmative defense of insanity which she had the burden to prove by a preponderance of the evidence. The standard of review applicable to this case is set forth in Meraz v. State in which the Court of Criminal Appeals held:

When the courts of appeals are called upon to exercise their fact jurisdiction, that is, examine whether the appellant proved his affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.

785 S.W.2d 146, 154-55 (Tex.Crim.App.1990) (emphasis added).

Appellant raised the affirmative defense pursuant to TEX.PENAL CODE ANN. § 8.01(a) which provides:

§ 8.01 Insanity

(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know his conduct was wrong.

Appellant had the burden of proof and burden of persuasion pursuant to TEX.PENAL CODE ANN. § 2.04:

§ 2.04

Affirmative Defense

(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 commission of the offense.

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

(d) If the issue of the existence 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.

Appellant seeks a factual review relevant to her affirmative defense; not a sufficiency review as to whether there was sufficient evidence to warrant a conviction. "The two reviews are mutually exclusive." Meraz v. State, 785 S.W.2d at 153. The Court of Appeals is constitutionally vested with the authority to determine whether a jury finding is against the great weight and preponderance of the evidence. TEX.CONST. art. V, § 6; Meraz v. State, 785 S.W.2d at 154. The Court of Appeals does not have to accept the implicit finding by the jury that the appellant did not prove her affirmative defense by a preponderance of the evidence if such finding is irrational. The issue is the adequacy of the proof of insanity which appellant presented in discharging her burden of proof and burden of persuasion, and whether the jury's implicit rejection of that proof is so against the preponderance of the evidence as to be manifestly unjust.

In Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986), the Supreme Court imposed the following safeguards in order to secure the sanctity of the jury trial when the court of appeals was in the process of exercising its conclusive factual authority:

In order that this court may in the future determine if a correct standard of review of factual insufficiency points has been utilized, courts of appeals, when reversing on insufficiency [great weight and preponderance of the evidence] grounds, should, in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. It is only in this way that we will be able to determine if the requirements of In Re King's Estate [150 Tex. 662, 244 S.W.2d 660 (1951) ] have been satisfied.

See also Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646 (Tex.1988).

At trial the Court instructed the jury that it is an affirmative defense to prosecution that, at the time of the conduct charged, the defendant, as a result of severe mental disease or defect, did not know that her conduct was wrong. The severe mental disease or defect must have existed at the very time or times inquired about, that is, at the very time of the alleged commission of the offense. The burden of proof, as to this affirmative defense, is upon the defendant to prove by a preponderance of the evidence. By the term "preponderance of the evidence" is meant the greater weight and degree of the credible evidence in the case.

In her first point of error, appellant asserts that the finding of the jury rejecting her affirmative defense of insanity is against the great weight and preponderance of the evidence. The evidence on the issue of insanity was lengthy, convincing, and uncontradicted. Three medical experts testified that appellant was legally insane on the date of offense. The State offered no expert testimony evidence to rebut appellant's insanity defense, relying instead on its cross examination of appellant's expert witnesses. There is no testimony, medical or lay, from which any rationale trier of fact could conclude that appellant was sane at the time of the offense.

The appellant testified that she is 35 years old and has been institutionalized numerous times for mental illness. She has been in psychotherapy since high school. As a young adult, she received electro-shock treatments in Memorial Southwest Hospital and in Methodist Hospital in Houston, Texas. She was treated at St. Mary's Psychiatric Hospital in Galveston, Texas, a few days before the offense. During the period before the offense, she was taking Elavil and Vicodin but stopped taking the medication after she was influenced by some Charismatic Christians.

In March 1990, appellant met Ottawa and Alice Pullen. He was her guidance counselor at Barclay Career School. During a session in Mr. Pullen's office when appellant was very upset and in pain, Pullen asked if she was "saved." He called Alice and the three of them prayed over the telephone. He invited appellant to Victory Christian Center, a nondenominational Charismatic Church that emphasizes "deliverance" and faith healing. Appellant and the Pullens prayed and had Bible studies together. They would pray in "tongues" and go around the house and "praise the Lord" by clapping their hands. She attended the Victory Church two times. The Pullens talked about Satan and demons and the "gift of healing" by the laying of hands. Alice Pullen once "performed" the "laying of hands" on Amelia when she was irritable and crying, telling Satan "to be gone." Alice told appellant that Satan was causing Amelia to be ill.

A few days before Amelia was killed, appellant went to the John Sealy Hospital in Galveston regarding some problems with tubes which were in her stomach. Amelia stayed with the Pullens. Appellant was transferred to St. Mary's psychiatric hospital. She called the Pullens. Pullen claimed to be her paster or minister, and the hospital allowed him to talk with her. He told her about a Dr. Walker who had treated Reverend John Osteen's wife, and who also believed in "faith healing". Appellant wanted to leave the psychiatric hospital. Appellant and Ottawa Pullen threatened a lawsuit if the hospital kept her against her will. The psychiatric hospital did not have commitment papers, and released appellant against medical advice. The Pullens picked her up in Galveston and drove her to her apartment at 6515 Hillcroft.

When they arrived, appellant sensed there were demons and evil spirits in the apartment. Ottawa said he would come in and "bless" the house. They formed a prayer circle in the apartment by holding hands. Ottawa prayed in "tongues" to "bless the apartment". In the middle of the night, appellant began "feeling things" and having real bad problems. She saw candles burning in the apartment and drawers opening and shutting. She saw a lizard in the apartment and thought it was a sign of the devil. A friend, Diana, who had been staying in appellant's apartment for a few days, was asleep. Appellant thought Diana was probably Satan too. She ran out of the apartment...