Pena v. State, 30274

• Decision Date: 07 January 1959
• Docket Number: No. 30274,30274
• Citation: 320 S.W.2d 355,167 Tex.Crim. 406
• Parties: Jesse PENA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 355

320 S.W.2d 355

167 Tex.Crim. 406

Jesse PENA, Appellant, v. STATE of Texas, Appellee.

No. 30274.

Court of Criminal Appeals of Texas.

Jan. 7, 1959.

Trueheart, McMillan, Russell & Westbrook, San Antonio, Joel W. Westbrook, San Antonio, of counsel, for appellant.

Hubert W. Green, Jr., Dist. Atty., Edward R. Finck, Jr., Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The indictment returned January 16, 1958, charged appellant with the murder of Frank Garcia on or about November 6, 1957, by cutting and stabbing him with a knife and by shooting him with a pistol.

Upon motion supported by affidavits that he was not mentally competent to make a rational defense to the charge, a jury was impaneled to pass upon the insanity issues, and on March 8, 1958 the jury, having heard the evidence, found that appellant was sane at that time and was sane on November 6, 1957, the time of the commission of the alleged offense. Judgment was entered on the jury's finding adjudging that appellant was sane on the dates mentioned.

On May 12, 1958, a jury was impaneled and the case tried on the charge in the indictment, and on May 16, 1958, verdict was returned finding appellant guilty of murder with malice and assessing his punishment at confinement in the penitentiary for life.

Judgment was entered upon the verdict, motion for new trial was overruled, notice of appeal entered and sentence pronounced.

No evidence was introduced at the main trial on the question of insanity and no issue was submitted or requested.

The ground upon which reversal is sought relates entirely to the preliminary trial on the insanity issues, the complaints being principally addressed to the charge as it related to insanity at the time of the killing. Appellant's counsel requested a number of special charges appropriate to the defense theory of insanity by reason of an insane delusion which caused appellant to believe he was acting in self-defense, and complains that they were not given.

The preliminary trial on the insanity issues was not the trial now before this Court for review, but another separate trial, not strictly criminal in nature, from which no appeal lies. See Ex parte Hodges, Tex.Cr.App., 314 S.W.2d 581; Morgan v. State, 135 Tex.Cr.R. 76, 117 S.W.2d 76; Griffin v. State, Tex.Cr.App., 29 S.W.2d 349; Warren v. State, 96 Tex.Cr.R. 627, 259 S.W. 575; Hardin v. State, 157 Tex.Cr.R. 283, 248 S.W.2d 487.

In this connection it is well to note that though the legislature has provided, in Art. 932b Vernon's Ann.C.C.P., and its predecessor Art. 932a V.A.C.C.P., for the submission at the preliminary trial of the issue of insanity at the time of the act charged, that trial and the right thereto rests alone upon the decisions of this Court and its predecessors construing the provision of Art. 34, Vernon's Ann.P.C.: 'No person who becomes insane after he committed an offense shall be tried for the same while in such condition.' Guagando v. State, 41 Tex. 626.

Having been adjudged sane at the preliminary trial, appellant's status was fixed as that of a sane person. When later placed on trial he had the same right to defend on the ground of insanity at the time of the killing as though the preliminary trial had not been held....