*1 PACHECO, Appellant, Zubia Jose
v. Texas, Appellee.
The STATE of
No. 078-85. Texas, Appeals of
Court of Criminal
En Banc.
June
Rehearing Sept. Denied Guaderrama, Paso, appel- El for
David C. lant. Simmons, Atty. Dist. and Rob-
Steve W. Dekoatz, Asst. ert and Matthew Dinsmoor Paso, Huttash, El Attys., Dist. Robert Austin, for Atty., State’s the State. PETITION APPELLANT’S OPINION ON FOR REVIEW DISCRETIONARY CLINTON, Judge. burglary of convicted
habitation; punishment was assessed years. The Court of confinement for five Appeals judgment of convic affirmed opinion. in an Pacheco unpublished tion Paso No. 08-84- (Tex.App. State — El 24, 1984).1 00131-CR, October delivered 304(b) provided must be belatedly a PDR State contends in its brief that Former rule 1. The ruling days after final filed “within 30 court of appellant’s petition should dismiss for we ruling” is appeals.” Here the "final because, (PDR) discretionary review the State overruling day of [the] the date of “the after time, timely calculates it was filed. 209(c), rehearing,” specifically rule motion for appellant's Appeals Paso Court of overruled El According to rule however November 22. rehearing motion for on November overlooked), (which "the to have seems the State says day filing and the State the last for PDR event.... which act after [or] agree was December 1984. We do with begins designated period run is not of time analysis Appel- of our of Post Trial and its Rules (Emphasis here added be included.” applicable. Procedure then late throughout by unless the writer *2 him Appellant proper procedures the locked it. followed and Ramos saw her sister (Nunez) prescribed by daughter coming and Article V.A.C. toward the C.P., timely by filing notice of his intention house and hurried to tell Nunez what had happened. to offer evidence of the defense. Ramos to then went another trial, telephone; after At all evidence concluded house to find a her sister called during jury charge daughter telephone a out to and conference to her look for a appellant police. the evidence suffi- and contended call the The sister remained near cient to raise the defense. How- the front of the house. ever, the did not it.2 trial court submit In the kitchen a coffee maker. presented appellant
The Shortly, issue thus the character came out of the house hand, quality sup- with and evidence sufficient to the coffee maker in his throw- ing port spilling the defense for determination hot and coffee from it. Nunez appropriate “[Tjhat say, a under instructions. him heard was his house.” “[S]ir, please replied, get She out because I your Appellant is not house.” told her, “[N]o, anything no one can do to me Testimony I because have God. God takes care me more, see, there as we will some While in my anything house and no one can do for upon undisputed he relies is which me. takes care also God of me and the complainant whose residence Virgin.” Appellant showed Nunez a appellant entered, of her and sister. Testi- “stamp,” then inside went back the through together fying interpreter, they closed the house and door. appellant related what did and said around top In on her bedroom of a “machine” Sunday noon of a in El Paso. kept rosaries in Ramos a small wooden box (Ramos) complaining The witness reporter “jewelry a the court labeled alone home when she heard the doorbell box;” a on there was likeness of Christ it. ring. She a window looked out and saw an religious All in the box were “of items open; intending outer “iron to door” was nature.” it, opened she close the front “wooden appellant ten came five or minutes out door,” only appellant standing see there. Indicating the house with box. the Appellant showed her a little “wallet” box, saying it was his such as case,” Nunez that “glass she indicated her with my rosary,” taking “I and “God scared,” said have head or “no.” “Like he was that,” carrying care of him because he was appellant with the hand wallet his “hit” nearby the to a complainant “here,” he across street body and with walked his “(indicating).”park, point by at that a structure pushed open, the bordered wooden door past “pillars,” called ar- appellant As brushed both witnesses her 3 inside, away a “cement resting went on Ramos ran from her officer described as house; appellant high. five closed the brick about feet door behind wall” Thus, indicated.) requested properly otherwise file written instructions au- first date prescribed day period thorizing acquit appellant is November reason Saturday. thirtieth December objection The court his overruled period rule 7 Under ran until the end of the requested submit instruc- and refused to However, following Monday, December tions. record reflects that while December 24 and 26 legal holidays meaning were within other from this witness have no hint We 4591, R.C.S., office of the Article El Paso Court clerk of the is. she was later asked where "here" When Appeals days, was closed those complain- any injury, the record reflects about making impossible appellant it for to file his me, answered, “Well, pushed ant hand, when circumstances, In these we PDR. will consider had, he went the little wallet that with timely filed. it day there me here and next was a like this to closed, parties judge After both of the trial arresting (Indicating)” The small bruise there. permitted object pro- court posed charge arm, testified, “On there was a her officer alia, jury, inter for the looked, possibly, it had like been red area that reason that it insanity not contain instructions of the did scratched.” defense, granted and also him leave to up top Virgin. climbed and stood on me and also the I believe structure, “showing the rosaries and people things because other that do placed plainant’s wooden box plainant pellant there.” Appellant up him,” ing he en such items as did not come son testified that “after a little more coach- up and told him to climb some Gibson arrived “the During It is Q. Did there after him.” He arrested following testimony. reason for that behavior? property, stamps.” searched did come down when started to him in the with undisputed her house Ramos that the Officer Gibson then cross examination of wall and said, sister, containing down, rings which was him, on the scene. He *3 “No,” Soon Officer seem to be wooden box appellant drew from her police bring and conceded “I would have to climb seized from his and a little appellant down rosaries. only property car. him in his “just stayed up appellant, I told him if he any apparent off the down.” Gib- Clay in his Nunez, is the small hand, chain, saw William pocket hand, from wall. com- com- took tak- ap- go similar vein A. A. Yes. Q. So, based on the observation that Q. Q. leptic he had declared that he would not that who entered right. we did him, him to come down and he tells them everything, maybe opinion like complaining Well, And, You didn’t [*] just thought you? right. that, coming because of the attacks so that’s beat did time, as to the no. After It’s that [*] what you the detective told me that cross-examination. out with a coffee you up. think your witness also testified they might tell me that [*] you sanity house on that they he was things told me —if I told moment, [*] he why thought, called him for was do is run or that he intoxicated, you [*] I pot, just get epi- he was person had an well, day? [*] did, not him, you your opinion had of is it well, very A. I believe he is I not don’t doing? he didn’t know he what was drugged, know he was drunk or but Well, because, A. I very he believe so a normal well. person, they things. don’t these I do Q. Could his behavior have been the don’t know. result of mental disease? going
MR. MARTINEZ: I’m object, Other Evidence speculation. that calls for THE COURT: Sustained. the third after his arrest a state- On Q. Nunez, Ms. tell jury what behav- appellant Spanish, ment taken from you strange
ior found part? on his writing English. Appel- but reduced to Juarez, gives lant a residence address in way acting A. The he was I believe Mexico, age pertinent and his as 31. drug was either drunk or he was a part the statement recites: right addict or that he was not in his mind. Sunday, I “Last do not remember Q. time, you. you Thank I Would tell the date or the exact but think it was noon, you
how formed the that he around I went to of com- [address right looking was not in his mind that he plainant] for friend named Vic- drugged or that he rang lady was intoxicat- I the door and a tor. bell reason, ed? any the door. answered Without lady running took off scared.... I way acting, A. I believe that the he was lady’s I do not remember if went into the way spilling he was the coffee and very possible I I house but it is did. way say my he would this is house change just I and would would like to what said not run. He would show say, previous this and he sentence and that I did would God takes care house, go in my lady’s of me house and no one into the but I did take can do anything for anything me. God takes care of [sic].” surrounding the offense application for the facts
Appellant timely filed
phase
complaining
that the
witness and her sis-
punishment
probation, and at
thought
custodian of
was not in his
proved by the
ter
appellant
Department
El Paso Police
mind. There was also evidence
records of the
search,”
did not
diligent
Appellant kept saying
the house
that “after
that the
entry
any record or
enough
find “the existence
his. This evidence is
felony
for the violation
of a
conviction
a mental disease or defect.”
show
Texas,
any
other
any
of the State of
law
States,
or of
United
state in the United
Contesting Contentions
The trial court
appellant].”
States [for
In this Court
contends testimo-
accordingly,
it de-
charged
ny
witnesses is sufficient to raise the
However,
probation.
clined to recommend
and,
contrary defense of
completed verdict on
handprinted
below
below,
that medical
courts
following:
appears the
punishment
*4
garding a mental disease or defect is not
(recom-
strongly
“Additionally,
Jury
this
primarily
He
required
support
to
it.
relies
defendant, Jose
mends) urges that
State,
(Tex.
v.
941
on Graham
566 S.W.2d
Pacheco,
and Pro-
receive Medical
Zubia
Cr.App.1978).
Counseling.”4
fessional
this Court the State
In its brief before
II
“lay witness testimo-
the issue of
addresses
Opinion Below
testimony.”
It asks wheth-
ny vs. medical
provide “the
testimony alone will
lay
er
in refusal
asserted error
To overrule his
insanity.”
the issue of
needed on
evidence
charge
jury on the
court
of trial
argues:
The State
El Paso
insanity,
issue of
Article
provision
Appeals noticed
disease and
of mental
“Such evidence
(submitted
1(a)
only
supported
if
generally
are not
especially
§
causation
evidence)
and elements
exper-
by competent
Some
average people.
known to
in the extant definition
defense contained
be
required.
The situation would
tise
Code,
8.01
insanity in
Penal
Y.T.C.A.
testimony
lay person’s
in which the
rare
(Vernon 1974),
engaged in a
and then
brief
dis-
prove mental
sufficient to
would be
analysis, viz:
knowledge on the
lack
ease
recognized
lay
defendant,
especially
it is
cau-
“While
part of the
941,
competent
support
enough evidence in the
950
(Tex.Cr.App.1978), there
a
finding of the above
evidence
v.
State,
on the issue
present case
just
ele-
Absent an
instant
sation.
[*]
case is
[*]
exaggerated case
not), the Court should be
[*]
[*]
[*]
(which the
[*]
lay testi-
testimony.
extremely reluctant
ments. There was no
support an
mony alone is sufficient
only
presented outside
The
times
man several
discharged
warned this
The Court has
judge
court
of the trial
4. After the
aloud,
gag
jury,
him if he continued."
he read that recommendation
he would
be taken care
a
that the matter would
outset of
remarked
reveal that at the
The record does
TDC,
screening
an-
ap-
at
and then
judge
of on initial
hearing
had
of trial the
pretrial
proceed to sentence
nounced that he would
pellant.
of this
the Bailiff
reflect "that when
the record
"(Whereup-
reporter
court
noted:
The
get
prisoner
...
went to
Court ...
unruly
loud and
mak-
on the Defendant became
ing
insisted
change
clothes and
into other
fused to
Spanish.)" When the trial
comments
way.”
coming
this
Court dressed
down to the
again,
reporter
judge
made a similar
started
hearing
judge directed
of that
At the close
judge
appellant
ordered
notation.
your
client
to "advise
for
counsel
gagged,
in-
and then recounted
handcuffed and
trial,
will be no
during
progress
there
of this
jury
during
are not
which
cidents
trial
and, you
inform
part,
can
...
on his
outburst
facts:
the statement of
otherwise revealed
or rout in
makes a commotion
him that if he
Spanish
“Let the record reflect that
straight
gag and
a
he will have
this Court that
trial,
Defendant, throughout
has been us-
him,
necessary.”
jacket put
ing profanities,
Court understands.
which the
733
finding
probable consequences
or to re-
affirmative
mission and the
“right
his
test.”
quire
a
instruction
the same.”
act” —the
[on]
State,
312, 220
Ross v.
153 Tex.Cr.R.
S.W.
(1949) (Motion
Rehearing,
Ill
2d 137
for
144). From stated observations of an ac
penal
The former
code covered the
attitude,
cused,
physi
both mental and
matter of
in articles 34 and 35.5
cal,
compared
previous
to his
attitude in
law,
Following the common
the rule in this
respects,
nonexpert may
those
a
draw
may recount
state is that a
witness
“general
opinion’’
conclusion or
as to
germane observations of an accused and
“general
sometimes
insani
what was
called
give an
that accused is insane on
ty,”
present
it in
aid and assistance to
abnormality
account of some
of mind.
Id.,
applying
the test.
at 147.
State,
619, 121
Newchurch v.
135 Tex.Cr.R.
(1938) (On
S.W.2d 998
Motion for Rehear
When thus raised
evidence under the
1001),
ing,
quoting approvingly
penal
jury charge
former
code the
on insan-
State,
428,
Thomas v.
ity
M’Naghten
98 Tex.Cr.R.
266
was couched
terms of the
147,
(1924);
Rule, i.e., “laboring
Plummer v.
S.W.
148-149
under such defect of
mind,
reasoning,
86 Tex.Cr.R.
ly 4.01 its first with re- and, by a trial spect capacity,” when admitted to “substantial viz: jury by a court and submitted to a correct M’Naghten “In contrast to the ‘ir- finding charge, support sufficient to a criteria, impulse’ resistible the Model generally Fuller v. See judgment Code formulation reflects the (Tex.Cr.App.1968) Ray, S.W.2d that no test is workable that calls for 1421, 2 Texas Texas Law of Evidence § complete impairment ability to know necessary It not then Practice extremity or to control. The of these testimony regarding that there be “medical conceptions posed greatest had diffi- a mental disease or defect before the insan- culty for the administration of the old Legislature ity Has the defense raised.”. * * * [per- standards. To meet these made it so? now administering ceived difficulties in old part Section 8.01 is taken Section standards], thought it that the crite- (1962), repro- ALI Penal Model Code defendant, rion should ask as a margin.6 The Practice duced Com- mental disease or Code, mentary following Y.T.C.A. Penal deprived capacity’ ap- ‘substantial 8.01, opines Penal that “the Model Code (or wrongfulness) preciate criminality leading test and its are the trend variations of his conduct or to conform his conduct [,]” M’Naghten away from and summarizes law, meaning requirements of the shortcomings It is said that latter. capacity appre- of some ‘substantial’ identification of the rules “fail to aid magnitude ciable when measured many persons crime who suffer accused of humanity general, op- standard of disorders,” from serious mental one reason capacity posed to the reduction of being they mental defectives “exclude vagrant and trivial dimensions character- altogether and focus on one of the sever afflictions of the istic of the most major aspects personality, cognitive mind.” faculty.” or intellectual Id., at 171-172. An initial observation at the outset “knowledge” critiquing the After *6 any provision neither related that 4.01 § finding quirement M’Naghten of and it purport to define of the Model Penal Code id., particulars, wanting in at least two at Surely “mental disease or defect.” the 166-167, points out: the Comment in terms do not differ substance from the ‘appreciate’ rather than “The use of M’Naghten formulation of “defect of rea- conveys a broader sense ‘known’ of mind,” son, of as construed disease understanding cognition. simple than applied of decisions the Court and * * * * Appreciating ‘wrongfulness’ Indeed, See ante. charges and otherwise. appreciating may taken to mean that the ALI Comment to 4.01 concedes that § regards as community the the behavior extends, principle the far as its “[a]s wrongful.” M’Naghten right,” contends rule is go aspects in other it does not far Against strong criticisms of the I, enough. Model Penal Code and Part improve- M’Naghten given stated Rule and (American Law Institute Commentaries by the ments deemed fit and advisable 1985) 166. Institute, American it is remarkable Law framing adopting 8.01 the justification language of under- § ante, significant by made only real extension scored in note the Comment criminality [wrongfulness] of his conduct or entirety 6. In its Section 4.01 reads: requirements of to conform his conduct to the or Defect Ex- "Section 4.01. Mental Disease cluding Responsibility. law. Article, (2) terms ‘mental (1) as used in this person responsible A is not for criminal an abnormal- do not include disease or defect’ conduct as a conduct at the time of such by repeated ity only criminal or defect he lacks manifested mental disease or misconduct.” capacity appreciate otherwise antisocial substantial either to issue is supra, that “the component.7 the Court stressed Legislature is its volitional one,” id., at strictly a medical enacted, nothing in 8.01 originally As § 951, 952, thereby depreciating value of radically Legislature so suggests that the attests to Graham testimony.8 also expert public policy of departed from the contemporaneous “circum- importance of caselaw, now to in our enunciated state determining of the crime itself” testimony regarding a stances require “medical of defect before of the accused mental disease the mental state objective of one Id., is raised.” While defense at 951. time. to accommodate Model Penal Code was in Denison v. All this determined psychological knowl- existing medical and (Tex.Cr.App.1983) 651 S.W.2d practitioners are edge end that its (Tex.Cr. and Cato v. 534 S.W.2d their testify more in terms of
permitted to wit- App.1976), is that is that the discipline, the fact of matter nesses, express a undertook to who never part adopt the first Legislature did insanity, was not conclusion Instead, sub- it adhered its formulation. In Denison issue. to raise the sufficient cognitive component of the stantially to the testimony of his victim appellant pointed to put in is- M’Naghten Rule which could be regarded his she to the effect that because nonexpert testimony. by sue “inappropriate,” she felt he was conduct as held, today this Court has never Until on crossex- her concession “drugged,” and intimated, only testimony by much less could be such conduct amination that expert in the field will raise the issue of id., illness, by caused mental dissenting opinion cites prior appellant himself testified to Cato inapposite, reads cases that are and then concerning and “trau- his wife” “visions simply are not implications into them facts of the of- about the matic amnesia” there. fense, id., In neither instance did at 138. (Tex. even allude to absence the Court Cr.App.1978), was decided in a context “impli- could not have testimony, and thus by expert testimony insanity presented testimony is recognized” that “medical edly Plainly, and none the State. accused disease or to show the ‘mental required then, accused, the issue was raised defense of the affirmative defect’ element no occasion for the Court there was Indeed, insanity.” Slip Opinion, at 2. nonexpert will decide whether see the reader to Cato invites Indeed, throughout germane raise it. compare prior decisions two parts opinion, quoting approvingly Court, M’Naught- applies herein, one of which from two cases cited and discussed State, both v. State and Boss v. en Rule.9 McGee Yet, responsibility, restricted to dissenting is not opinion points in its as the out *7 The of causation. science theories component medical was deleted in 1983. note 1 that requirement issue ‘result’ long standing "knowledge" connective feature is re- The compo- encompassed inarticulable ethical tained, the his conduct was viz: "did not know will, nent, imperatives of free (b) which includes wrong." Except for a caveat in subsection control, responsibility for one's acts and self scarcely statutory insanity law of is distin- the man, notions of fundamental to our that are prevailing guishable before from the caselaw of social relations are the foundation and that pains January takes to 1974. The dissent also responsibility on such a built criminal and descriptive the word "severe” underscore concept of man." However, legislation. in the was inserted Graham, supra, 953. at or defect an if as a result of mental disease wrong does not know his conduct accused dissenting opinion Ma- regard in 9.With it, surely engages mental in then when (Tex.Cr. at 116 S.W.2d drid v. Introducing "severe” disease or defect is severe. quoted thin bit App.1979), suffice to quite superfluous. seems of dissenting opinion recitation at 3 is a attempting of in the course fact made historical Elucidating proposition, the Court de- harmful reversible that it was to demonstrate clared: prosecu- permit the to the trial error for court presumption of argue is a there deciding tion to because the abnormal mental "In whether produce evi- sanity no burden to State has will excuse criminal condition of the accused requirement insanity, there had to in
Having of be some evidence shown the impose, support and to each element listed the State would the record El Appeals Paso Court The Court of absence of which the above. acknowl- to noticed, raise Appeals particularly edged lay testimony compe- to an of is often law, in our is not founded issue tent evidence issue of analysis however, returning proper found, under and that there no testimo- law, predicated existing demonstrating we hold that ny appellant possessed opinion testimony when considered with a mental disease defect. concerning an ac and circumstances facts majority nonexpert now finds that may sufficient and of the offense be cused may be sufficient witness However, we will not to raise the issue. requirement meet the of Article Sec- suf determine the evidence is now whether compe- Y.A.C.C.P., 1(a) tion that there be here, for that is a determination ficient tent affirm- before the the first appeals made a court of jury. is submitted to the ative defense instance, appeal. as on direct (prior The old Penal Code Therefore, judgment the El Paso 1974) provided that order to establish vacated, Appeals and we re- Court defense, to show the evidence had for further cause to that court mand mental condition defendant’s that the opin- with this proceedings not inconsistent of the offense that he the time was such ion. distinguish between was unable charged. particular as to the act ONION, concurring Presiding Judge, drafted, Penal the new Code was When dissenting part. part changed to phrase “mental condition” was reached, but I I concur in the result specific or de- more “mental disease record is to the remand. The be- dissent clearly Legislature’s This shows the fect”. fully explored. this fore has been recogniz- require showing of a intent to here in the The cause should be finalized At one com- ailment. least able medical kept heavenly justice and not interest agrees: mentator appellate orbit. is the element of this test “The [next] or de- requirement of ‘mental disease TEAGUE, J., joins opinion. It seems that this test would fect’. McCORMICK, dissenting. Judge, be a the disease or quire defect medical disorder....” recognizable trial, appellant’s the ele- At the time of Penal Stat- Texas Annotated Branch’s of insani- ments the affirmative defense (3d Edition), p. utes, Section 8.01 following: ty consisted of the added). (Emphasis charged, (1) At the time of the conduct actor, dis- (2) the as a mental the fol- (Tex.Cr.App.1978), this Court wrote
ease or
lowing:
(3)(a) did
his conduct was
not know that
wrong,
expressed
terms
defense is
“While
defect,’
issue
‘mental disease or
of a
(b)
conforming
incapable
It
strictly
a medical one.
is not
requirements of the law
conduct to the
legal con-
that invokes ethical and
V.T.C.A.,
issue
allegedly
Penal
violated.
as well.” 566 S.W.2d
siderations
Code, Section 8.01.1
*8
say that
Graham
Thus,
goes
in
on to
required
to The
the trial court was
before
not be
can
defense of
give
charge
the determination
affirmative
that,
Id.,
113,116.
of the
prosecution
the time
that inclusion of
fense to
dence.
To
actor,
charged,
of severe
recognition”
a result
“implied
of a
conduct
fact is an
historical
requirement
defect,
disease or
did not know
mental
in the law
inaccurate.
added). The
wrong.” (emphasis
was
conduct
occurred on
August
in the instant case
Effective
the statute was
offense
23,
"(a)
de-
to read:
It is
affirmative
amended
an
suf-
if a defendant
evidence to determine
alone.
solely on medical evidence
based
however,
or ailment.
text,
is the ac-
mental disease
Implicit in
fers from a
testimony is
knowledgement
medical
testimony is
Moreover,
if medical
even
in
raising
issue of
in
indeed essential
“men
required in order to establish
indeed,
for,
defense
sanity
the affirmative
element,
wit
or defect”
tal disease
“medi
largely
up
made
of a
issue to
fails to establish
ness evidence
disease or
component. This “mental
cal”
complaining witness’
insanity. Here the
component is one that
limits
defect”
that,
appel
opinion,
in her
sister testified
v.
availability of the defense. drunk,
drugs, or
either
addicted
lant was
State, supra, at 952.
right in his mind.”
“he
was
past
Although
has not
this Court
he
testimony to assert that
upon this
relied
testimony is
explicitly
that medical
held
insanity.
instruction on
entitled to an
was
required
the “mental disease
to show
appel
surmised that the
That the witness
of the affirmative defense
defect” element
way
right in his mind”
no
lant “was not
recognized
impliedly
we have
Deni
or defect.”
a “mental disease
shows
In
requirement
of cases.
this
a number
State,
State, supra, at
Cato v.
son v.
State,
(Tex.Cr.
v.
Denison
651 S.W.2d
Nothing in the record even
supra, at 138.
held that where the
App.1983), this Court
offense
suggests
at the time of the
burglary
happened to be a
victim who
suffering
any recogniz
that the defendant’s behav
nurse testified
Therefore,
trial
medical disorder.
able
“inappro
“inappropriate”
ior
and this
refusing
instruct
court was correct
priate
could
caused
conduct”
have been
of in
defense
on the affirmative
illness,
testimony
mental
alone was
sanity.
totally insufficient
to raise the defensive
I, therefore,
dissent to the action
issue of
instant cause.
majority
(Tex.Cr.
Cato v.
experienced concerning his wife. visions
He further testified that he remembered
nothing killing except the actual about arguing
he with his wife when she hit causing pass
him him to out when strangled. had After
awoke wife been reviewing the entire record the Court Tracy parte Annette Ex found that there was no indication MADDUX, Appellant, offense, evidence that at the time of the “appellant, dis as a of mental v. either did not that his ease know Texas, Appellee. The STATE incapable of conduct was or was No. 296-87. conforming requirements his conduct v. violated.” Cato allegedly of the law Texas, Appeals of of Criminal Judge supra, at 138. See also Clin En Banc. Madrid dissenting opinion in ton’s 15, 1988. June (Tex.Cr.App.1979), the defense he noted that where “[s]ince Sept. Rehearing Denied supported by psychiatric other insani testimony, the trial court submitted (emphasis
ty as an affirmative defense.” recognize
added). majority fails of medical
that, some without disorder, any is without
ailment or