Baker v. State

again subject is to the Commissioner’s de-

terminations.

Further, agency findings as to rights

contractual must be considered final binding, appeal when there is no taken

from the decision. Borger Independent Dickson,

School District v. (Tex.Civ.App. writ — Amarillo

ref’d). Finally, declaratory judgment only proper

would if the Commissioner jurisdiction

lacked to consider the suit. See City Utility Sherman Public Com

mission, (Tex.1983).

The District did not follow the

mandatory statutory require exclusive judicial

ments for review. District re

sponds object that Grounds did not

jurisdiction County of the Hood District practice

Court. While the better would

have been to file and hearing have a on a

plea challenging jurisdiction court, County jurisdiction

Hood lack of

fundamental error and be raised be

fore this court for the first time. See W.J.

McCauley Underwriters, v. Consolidated (1957).

157 Tex.

Therefore, the court of erroneously jurisdiction

assumed of the case. Baker v.

Hansen, (Tex.1984). judgment of the court

reversed and the order of the State Com-

missioner of Education is reinstated. Ritchie, Houston, appellant.

Herb Holmes, Jr., Atty., John B. Dist. BAKER, Appellant, James Earl O’Brien, Brough Casey James C. Asst. Houston, Huitash, Attys., Dist. Robert Texas, Appellee. The STATE of Asst., Walker, Atty., Alfred First No. 135-85. Austin, for the State. Texas,

Court of Criminal

En Banc. Jan. 1986. OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW Rehearing April Denied 1986. DAVIS, Judge. TOM G. attempt- appellant guilty found ten

ed murder and the court assessed 894

years. (Hous- Appeals The First of jury’s Court affirmative defense and that the ton) reversed and remanded for a new trial manifestly unjust, was verdict the re- published opinion, in a holding that the viewing duty has court the to reverse the jury’s implied finding that was judgment trial court and remand the case against great not insane so weight the trial, regardless for new of whether the preponderance and of the evidence toas proba- record contains some evidence of manifestly unjust. Baker v. support in tive force of the verdict. In (1984). granted We the State’s Estate, King’s re Tex. petition discretionary review to examine (Tex.1951).” S.W.2d holding. this Appeals the Court of handed down Since Appellant claims that he established the case, opinion in instant we have its insanity affirmative defense of as a matter argument that Con rejected the the Texas The Appeals of law. Court of treated his of and the Code Criminal Proce stitution rejecting claim to be that the verdict his on of jurisdiction dure confer the Courts against affirmative defense of weight pre great and Appeals to consider great weight preponderance and questions ponderance of the evidence fact evidence. involving in the affirmative defense cases weight applying “great pre- In —State, insanity. Van Guilder v. ponderance” standard, Ap- the Court of 899-84, S.W.2d - (No. Novem delivered peals reasoned follows: as Guilder, 6, 1985). we ber Van provisions “Under the of the 1980 amend- that: held V, ment 6 of to art. sec. the Texas Con- stitution, 1, 1981, involving September reviewing effective in a case an “... defense, appeals appeals the courts of are vested with the court of affirmative authority questions conclusive over all must review the evidence on affirma- presented appeal. fact on Consistent looking in at the evidence by tive defense mandate, with that Crim.P. Tex.Code art. implicit light most favorable to (Vernon Supp.1984), 44.25 likewise effec- respect such finding by September 1981, provides tive that determine, defense and then affirmative of appeals ‘courts ... reverse the concerning examining by all evidence action, judgment in a criminal well as defense, any if rational upon upon the law as the facts.’ of fact could have found that trier interpret grant authority “We this his defense defendant failed mean, as at least two other courts of preponderance of evidence. a determined, already have that we is limited in its review court jurisdiction great weight have to consider using preponderance standard to evi- ¡ questions preponderance fact in on of the af- submitted the issue dence involving the affirmative defense cases question. in This re- defense firmative insanity. Van Guilder defendant is is called for when the view (Tex.App. Antonio S.W.2d — San contesting pet.); no Schuessler support conviction because his his 742 (Tex.App. Paso — El. adequately he assertion pet. granted). There must be affirmative defense.... passing challenge “In reclassifying of the evi- reweighing no against great weight appellate court.” dence evidence, preponderance the re- Appeals applied Because Court of all viewing court to consider the rele- assessing rejected ap- standard we have presented. doing If after vant evidence claim, pellant’s judgment reverse the so it determines that the defendant at we proof trial carried his burden of remand the case Appeals the Court ing evidentiary “great to that court to conflicts the standard set out as does the Guilder, supra.1 Van preponderance of the evidence” standard to the Court of when CLINTON, J., in result. concurs applied in criminal cases. rehearing denied with- motion for Van Guilder erroneously decision opinion. out written Virginia, of Jackson v. applies holding P.J., by CLINTON joined ONION, 443 U.S. 99 S.Ct. 61 L.Ed.2d 560 McCORMICK,JJ., dissent. (1979), Winship, and In re 397 U.S. dissenting. Judge, ONION, Presiding (1966), 25 L.Ed.2d Mo- review of an affirmative defense in a crimi- overrules majority The opinion. Rehearing written nal case. without tion I dissent. Legislature’s lawmaking authority

Appellant attempted was convicted of right includes the fix define crimes and punishment murder and his III, was assessed penalties therefor. Article Texas § years’ imprisonment. the court at Constitution; Baker v. 70 Tex.Cr.R. appeal appellant On he claimed estab- 158 S.W. insanity, lished the affirmative defense of McNewv. (Tex. 8.01, V.T.C.A., Code, Penal as a matter § Cr.App.1980) (Opinion rehearing). Appeals of law. The Court of treated his defining Legislature crimes the establishes claim to be that the verdict the elements of the offense. him guilty attempted reject- murder and appellant In the instant case the was ing his affirmative insanity defense of charged attempted with murder in the against great weight preponder- prescribed by Legislature. terms ance of evidence. That court held that the V.T.C.A., Code, (Murder), Penal 19.02 §

jury’s implied finding appellant that provides part: in against great not insane was so preponderance “(a) person evidence as to be A commits an offense if he: manifestly unjust. Baker v. “(1) intentionally knowingly or causes 1984). (Tex.App.-Houston [1st] the death of an individual.” original On submission this Court held V.T.C.A., Code, (1974), pro- Penal 6.03 § Appeals that the applying Court erred in part: vides “great weight preponderance” “(a) person intentionally, A acts or standard and proper that the standard of intent, respect with with to the nature of review was that set forth in this Court’s conduct or to a result of his conduct — opinion of Van Guilder v. objective or when it is his conscientious - (Tex.Cr.App. No. 899-84 engage desire to in the conduct or cause 1/6/85). The cause was remanded to — 1 the result. Appeals the Court of the standard “(b) person knowingly, A acts or with Guilder, Van set out in supra. knowledge, respect with to the nature of I the result reached in Van concurred sur- his conduct or circumstances Guilder, situation, a most unusual but I do rounding his conduct he is when aware forth, agree not with the standard there set his conduct or that of the nature of “great weight preponder- nor with the person circumstances exist. A acts ance of the evidence” standard in criminal knowledge, knowingly, with re- with cases. spect he to a result his conduct when Van Guilder reasonably standard his conduct is thrusts this is aware that role Court into the of factfinder in resolv- certain to cause the result.” decide, law, ap- proper disposition 1. Should the Court of after then a matter standard, plying acquittal, not a the Van Guilder to reverse and order verdict established the affirmative defense of new trial. V.T.C.A., Code, (Criminal Penal 15.01 At- unless evidence is admitted § tempt), provides: supporting the defense.

“(a) “(d) person If the if, issue the existance commits an offense affirmative defense is specific submitted offense, intent to commit an charge court shall that the de- he does an amounting act to more than fendant must de- preparation mere that tends but fails to preponderance fense of evidence.” effect the commission of the offense in- tended. V.T.C.A., Code, (1983), pro- Penal 8.01 § “(b) person If a vides: attempts an offense aggravated, “(a) his conduct con- It is an affirmative defense to an attempt that, stitutes aggra- prosecution commit the at the time the con- charged, actor, vated offense if aggra- an element that duct as a result of defect, accompanies vates the severe mental disease or offense did not at- tempt. wrong. know that his conduct was “(b)

“(c) ‘mental de- It is term disease or prosecution no defense to does abnormality fect’ not include an attempt criminal the offense at- only by repeated manifested criminal or tempted actually committed. (Acts otherwise conduct.” antisocial “(d) An under offense this section is 1983, Leg., p. 2640, 454, 1, 68th ch. § category one lower than the offense at- 29, 1983.) Aug. tempted, attempted and if the offense is of felony degree, the the third offense At felony the conclusion of a case tried (Acts is a 1975, Class misdemeanor.” before a is required a trial court to Leg., 478, 203, 4, give charge p. jury “distinctly 64th ch. a written to Sept. eff. the § 1, 1975.) setting applicable forth law the the to 36.14, case.” Article V.A.C.C.P. Before If charged an individual by is indictment the of issue the existence of an affirmative offense, or information with a criminal the is jury, defense submitted to the there proof burden of upon is the to State supporting must be evidence same. him of each element of the offense V.T.C.A., Code, 2.04(c). However, Penal § beyond V.T.C.A., doubt. reasonable Pe- a defendant is entitled to de- affirmative Code, 2.01; 38.03, nal Article V.A.C.C.P. § regardless fense instructions of whether 2.01, provides: Section feeble, strong, impeached that evidence is presumed persons “All to are be inno- State, or Campbell contradicted. v. 614 person no cent and be convicted of (Tex.Cr.App.1981). S.W.2d 443 an offense each unless element of the in- the instant case the trial court is beyond offense a reasonable applicable structed the on the law to doubt. The fact that he has been arrest- case, etc., proof, of burden as well ed, confined, for, or indicted or otherwise as the insanity. affirmative defense of with, charged gives the offense rise to no 38.04, (Jury Article V.A.C.C.P. are guilt of inference at his trial. facts), judges provides: of V.T.C.A., Code, (Affirmative Penal 2.04 § cases, “The in all is exclusive Defense), provides: judge of proved, facts “(a) An affirmative defense weight given testimony be ex- by phrase: code is so labeled ‘It is an cept provided by where it is law that prosecution....’ affirmative defense proof of any particular is to fact be taken “(b) attorney prosecuting is not presumptive proof either conclusive or required negate the existence of an fact, of the existence of another or where defense accusation degree the law directs that a certain charging the commission of the offense. weight is to to a be attached certain “(c) The issue species existence of evidence.” also Article See 36.13, affirmative defense is not submitted to V.A.C.C.P.

897 And it is Virginia, Jackson along well that a Then came established judge facts, 2781, exclusive of the the sole 443 U.S. 99 S.Ct. 61 L.Ed.2d 560 judge credibility (1979), a federal habeas cor- witnesses which involved and the given pus proceeding their sufficiency testimo where the Miller v. ny. (Tex. 566 614 to sustain criminal evidence a state Cr.App.1978). The jury may choose to be Jackson conviction at issue. set a lieve or any testimony or any disbelieve standard of review of state convictions either process from side. A is enti due upon federal courts based tled to or accept reject any part requirements or all Amend- Fourteenth testimony given State defense ment. Vanderbilt witnesses. 629 For many years long federal courts de- (Tex.Cr.App.1981) cert. den. 456 clined to review the evi- U.S. 169; 102 S.Ct. 72 L.Ed.2d dence supporting state criminal convictions Bowden v. (Tex. 628 S.W.2d 784 questions that such basis did not Nixon v. Cr.App.1982); raise question. a federal constitutional 699 (Tex.Cr.App.1978); Johnson v. See, e.g., Whitney v. California, U.S. Preston 357, 367, 641, 645, S.Ct. L.Ed. 1095 Turner, (1927); Sinclair v. 447 F.2d Reconciliation conflicts and contradic (10th Cir.1971), cert. den. 405 U.S. tions in province evidence within the (1972); L.Ed.2d and such conflicts will not call for Carolina, Grundler v. North 798, 283 F.2d reversal if is enough there credible testimo (4th Cir.1960), 917, 802 cert. den. 362 U.S. ny to support the conviction. Bowden v. 670, (1960); 80 S.Ct. United 4 L.Ed.2d 738

State, State, Lombardo supra; v. 503 Martin, Brogan States ex rel. v. 238 F.2d S.W.2d 780 236, (3rd Cir.), 928, 237 cert. den. 351 U.S. In the instant case the (1956). returned a 76 S.Ct. 100 L.Ed. 1457 See 28 guilty U.S.C., (1976), U.S.C., verdict of rejected and the affirma- 1257 and 28 2254 § § (1976). tive insanity. defense of Louisville, When an individual In Thompson City v. convicted a 362 challenges

crime and (1960), the suffi U.S. 4 80 S.Ct. L.Ed.2d 654 ciency of the evidence to support jury’s Supreme the United States Court carved a guilty, verdict of long proper it has exception been to from above narrow stated rule, view light the evidence holding upon most favor a based that conviction able to See Ransonette no jury’s verdict. process due violated law. State, v. 42 (Tex.Cr.App. Thompson 550 S.W.2d clear it had not en- made State, 1976); v. Bowers dorsed review of federal v. 932 (Tex.Cr.App.1978); Nixon evidence, only 572 review for but federal (Tex.Cr.App.1978); S.W.2d 699 Aheam v. Following total absence evidence. Thompson, (Tex.Cr.App.1979); advent of federal courts re- Vaughn v. (Tex.Cr. 607 914 only viewed state criminal trial records but Darrington App.1980); v. to determine if there was at least some support See, 13A judgments. Tex.Di evidence to Rose, gest, (6th v. Key 1144.13(2). e.g., Brooks Crim.Law 520 F.2d 775 Brewer, 511 F.2d Cir.1975); Cunha gave The rule reference to role of (8th Cir.1975); Maryland, Johnson v. jurors as heard factfinders who had (D.Md.1976). F.Supp. 538 demeanor, witnesses and observed their Virginia, in Jackson However, explicit considers finding guilt, Supreme as to which the the United Court broke States precedent. required beyond sharply find a reason- with this established In re doubt, very Relying upon able and which formed the its earlier decision Winship, basis of the criminal conviction. U.S. (1970), L.Ed.2d 368 which found that process due due of law. omitted [Footnotes process requires prosecution emphasis added.]” every element of a beyond criminal offense It is to be observed that Jackson was doubt, a reasonable the court held that in a Virginia convicted in a upon state court challenge to a state brought conviction un- plea of not placed upon which der corpus statute, habeas requires which prosecution state the burden proof re- federal courts to entertain prison- a state quired by In Winship, supra. re The Jack- er’s claim being that he is held in custody whether, son standard is viewing the evi- in violation of the Constitution or laws of dence in light most favorable to the States, the United applicant is entitled prosecution, any rational trier of fact could corpus federal habeas relief if it is found have found the essential elements of the upon the evidence adduced at trial no beyond crime a reasonable doubt. The im- rational trier of fact could have found plications Jackson, course, could not

proof of the essential elements the crime be limited to the corpus federal habeas beyond a reasonable doubt. Jackson, context. After federal and state In Jackson the Court wrote: assessing courts the evidence either at the inquiry critical on review of the “[T]he trial level or on direct presum- review wil sufficiency of the support evidence to ably obligated “rationality” criminal conviction must simply be not test. determine whether the properly applied This Court has the Jackson stan instructed, but to determine whether the dard on direct in both direct record evidence could reasonably support See, circumstantial guilt evidence cases. beyond e.g., a reasonable (Tex.Cr. doubt. Carlsen inquiry But this require does not a court to ‘ask App.1983) (Opinion itself whether it believes on State’s Motion for that the evidence at the Rehearing); trial established Wilson v. guilt beyond a reasonable doubt.’ Wood (Tex.Cr.App.1983) (Opinion on State’s INS, by v. [276,] [, 385 U.S. at 282 Rehearing). Motion for Brandley See also S.Ct. at 17 L.Ed.2d In State, 362]. (Tex.Cr.App. S.W.2d stead, whether, the question relevant 1985); Houston v. viewing the evidence in light the after (Tex.Cr.App.1984); Jackson v. prosecution, most to the any favorable O’Keefe rational trier could have of fact found (Tex.Cr.App. the essential elements the crime be 1984); of Dickey v. yond a reasonable doubt. See Johnson (Tex.Cr.App.1984). Louisiana, [356,] [, 406 U.S. at 362 92 Guilder, In involving Van the affirma- at 32 L.Ed.2d 152]. insanity, tive defense of the majority of gives This familiar play standard full to Court, claiming process this to afford due responsibility the of the trier of fact fair Jackson, under wrote: ly to resolve conflicts in the testimony, to “Because some review of the affirma- weigh evidence, the and to draw reason necessary tive defense is in such cases in able inferences from basic facts to ulti appellant process order to afford an due mate facts. Once a defendant has been Jackson, Court, supra, under found this charged, of the crime the keeping principles Jackson, weigher factfinder’s with the role as of the evi preserved provide must through legal dence is a standard of a con review upon judicial elusion that consistent with constitutional law in review all this inviolability jury the evidence is to be area and the of the considered in the light prosecution. most to the fact finders in Texas criminal law. favorable Therefore, impinges upon The criterion thus ‘jury’ we hold that in reviewing a only necessary discretion to the extent involving to case defense, an affirmative guarantee protection the fundamental appeals the court must review the

evidence on the anee of the evidence. Madrid v. by affirmative defense looking at the light evidence in the Van jury if rejects Guilder means that the an most implicit to the finding favorable and finds the affirmative defense defend- by the respect to such affirm- guilty, challenges ant and he determine, ative by and then defense sufficiency the the evidence or claims he examining all concerning the evidence defense, adequately proved his affirmative the defense, any rational affirmative if then standard the above stated must be trier could have that the of fact found applied. put case the court must such a prove to his by defendant failed a defense question sufficiency aside the of the of the preponderance evidence. conviction to sustain affirmative find- court of is limited its review ing jury, pass negative of the and first on a using preponderance this standard to evi- finding, implicit finding an dence submitted on the issue of the af- “by examining the affirmative defense all question. firmative defense in This re- concerning the evidence the defense” and view is called for when defendant is any determine “if rational trier of fact contesting sufficiency of the evidence could have found that the defendant failed support his conviction because of his by preponderance his defense adequately proved assertion that he looking By evidence.” at the limited It is important defense. scope of only by the evidence reflected note that does analysis not involve record, appellate appellate cold court appellate any finding court in fact usurps the role of who has heard the legal function. The evaluates the test witnesses and observed their demeanor.1 using legal of the evidence appellate If the court finds from the limited reweighing standard. There be no must evidence adequately or reclassifying by contrary implicit his defense appellate court.” negative finding then the show Nothing in Jackson mandates such ab- is over. No one has wait until the fat surdity. The affirmative defense lady sings. no need There is to review all by evidence, raised weakest even that evidence and Jackson to the af- has which been contradicted and im- appel- for the firmative peached. supra. Miller v. The de- acquitted2 already lant has been produce fendant has both the burden to inquiry narrow mandated Van Guild- persuade by preponder- burden to er.3 interposed, accept try 1.Where defense is all then it is evidence and evaluate it necessary present expert not for the State from the cold record. testimony that a defendant sane in order to opinion 2. See footnote # 1 of of this Court testimony. counter the defense medical Her original in the submission instant case. 157 Tex.Cr.R. nandez 260 Ross v. procedure 3. This is somewhat reminiscent of jury The is not procedure regarding insanity earlier state in this experts. bound of medical conclusions being as a defense tried before a in a 941, 950, (Tex. Graham v. preliminary hearing before the trial on the mer- Cr.App.1978). findings Jury that a defendant surrounding its without the facts crime upheld though was sane even no medi being Legislature introduced. In 1937 the en- expert cal testified to effect. Hernandez acted, 932a, (1925) (Acts Article V.A.C.C.P. State, supra. judge exclusive 466), Leg., p. 45th and in ch. 1957 enacted given facts to be 932b, (Acts (1925) Leg., p. V.A.C.C.P. 55th V.A.C.C.P.; 38.04, testimony. Article Madrid v. 486). procedure ch. Under the estab- 1976). (Tex.Cr.App. lished, present insanity (compe- if the issue of exercising jury may authority accept such tried) tency to stand the issue of reject any testimony or all of the of a witness. preliminary jury a defense were raised and a (Tex.Cr.App. Preston v. issues, finding by 1970). trial was held on such appellate usurps When an court the role tendency that the was insane at engage defendant the time of it has a in a head of counting game party the commission of the offense the defendant had the most wit —which subject acquitted. on the stood nesses matter is inclined to I would reconsider and the Van Guilder

instant case. I would therefore dissent to

remanding this cause to the Ap- Court of

peals for further consideration in light of

Van Guilder at this time. McCORMICK,JJ., join

CLINTON and in opinion. ADAMS, Jr., Appellant,

Martin Luther Texas, Appellee. The STATE of Brown, Corpus Christi, Eric G. appel- No. 364-84. lant. Westergren, Mike Atty., Barry Co. Texas,

Court of Criminal Brown, D. Atty., Corpus Christi, Asst. Co. En Banc. Huttash, Robert Atty., and Cath- Feb. 1986. Riedel, Austin, leen R. Atty., Asst. State’s for the State.

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW DAVIS, Judge. TOM G. found of obsceni-

ty days jail in assessed 270 and a fine $1,800.00. Ap- Thirteenth Court of Christi) peals (Corpus publish- affirmed opinion, holding ed the trial court’s overruling quash error the motion to prejudice information did not the substan- rights appellant. tial Adams v. read, explaining the 1957 enactment of Article that has not heard the indictment 932b, Judge Woodley relating charged, any K.K. of this Court the facts to the act or "Insanity relating ques- As a Bar to article in cution,” Criminal Prose- evidence other than that sanity 3 South Texas Law Journal said: tion of the of the accused.” (Tex. "The new act makes such a See also Townsend v. [Article 932b] finding [insanity Cr.App.1968). at the time of the at the act] preliminary scope trial more than a defense. It is In view of the limited of the evidence acquittal, permitted by the same as if made Van Guilder to be considered possible appellate passing rejected is now at the main trial. So it court in on the defense, charged a criminal offense to be affirmative lyrics one one is remembered of the song, acquitted, though “Things happening he has never been tried for of that that are offense, acquitted by happening again.” such and in fact to be for the first time seem to be

Case Details

Case Name: Baker v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 15, 1986

Citation: 707 S.W.2d 893

Docket Number: 135-85

Court Abbreviation: Tex. Crim. App.