*1 judgment appellate court shall reverse review, appellate court
under unless the beyond
determines a reasonable doubt
the error made no contribution to the con- punishment”).
viction or
Finding that the court committed error
denying suppress having the motion to harmless, that the error was not we
found rehearing. the motion for
overrule TAYLOR, Appellant,
Valerie Susan Texas, Appellee.
The STATE of
No. 01-90-00906-CR. Texas, Appeals
Court (1st Dist.).
Houston
April 1993.
Rehearing May Denied *2 Holder, Angleton, Tipton
Terri for lant. McClendon, Angleton, Mapel, Kelly
Jim appellee. MIRABAL, SAM BASS and Before O’CONNOR, JJ.
OPINION MIRABAL, Justice.
A Valerie Susan found four-year- Taylor, murdering her guilty of punish- daughter. old assessed affirm. for life. We ment at confinement by reason of Appellant pled guilty “not conceded insanity.” The State disturbed, posi- took the mentally but difference between tion knew the killing. of the the time the State showed night of the of- smoked marihuana fense, regarding evidence presented paranoid on a the effect of marihuana schizophrenic. error, appellant point as- her fifth against
serts the verdict was so great weight preponderance Ap- manifestly unjust. evidence as to be pellant argues the affirmative proved her conviction insanity, defense of should be reversed. employed of review standard examining appeals courts of when Now, you from the be- if find evidence sufficiency supporting of evidence
factual doubt that on or about whether, yond reasonable after affirmative defense an November, Brazo- day 1989 in the 8th considering all the evidence relevant to Texas, defendant, County, VAL- ria hand, judgment against is so issue TAYLOR, then and SUSAN ERIE *3 weight great preponderance of the intentionally knowingly or cause there manifestly unjust. as to be Mer evidence individual, namely Meara the death an (Tex.Crim. az Taylor by stabbing the said Meara Taylor App.1990). claiming as an affir knife, weapon, deadly which a a with defense, the bur mative both in- means of use or manner and its production the bur den of of evidence and causing seri- capable use tended persuasion issue. at 150. den of on the death; you if find bodily injury or or ous reads jury charge, part, The in relevant beyond reasonable the evidence a from as follows: day of 8th doubt that on or about the defendant, Taylor, Valerie Susan November, 1989, County, in Brazoria charged by stands indictment with Texas, SUSAN the defendant VALERIE murder, alleged have been offense to TAYLOR, intent and there did then with County, committed Brazoria Texas bodily injury an indi- cause serious November, day or about 8th vidual, Taylor, namely Meara intentional- pleaded To this the defendant has clearly ly knowingly commit an act insanity.” life, guilty by “not reason of dangerous to did stab human to-wit: knife, a Taylor with a the said Meara provides person that a commits Our law deadly weapon in the manner which intentionally if the offense of murder or use was means of its use intended knowingly any or causes death of injury causing bodily serious capable of individual, or intends to cause serious death, of said which caused death or injury clearly bodily and commits an act de- Taylor, you then will find the Meara dangerous to human life that causes the charged in murder as guilty fendant an death of individual. the indictment. you But unless do so believe from person intentionally A acts or intent with doubt, if beyond a reasonable or evidence respect with to the nature of her conduct thereof, you you have a reasonable doubt or to a of her it is result conduct when acquit defendant of murder will objective her conscious or en- desire to verdict, by your guilty.” “not say gage in the conduct or cause the result. prosecu- It is an affirmative defense person knowingly A acts or knowl- with that, time of conduct tion edge, respect to the with nature of defendant, result charged, as a surrounding conduct or circumstances defect, mental disease severe her conduct when she is aware wrong. conduct was know of her nature conduct that the circum- illness or does The term “mental defect” knowingly person stances exist. A acts manifested abnormality not include an a knowledge, respect or with only by repeated criminal or otherwise result of conduct when she is aware anti-social conduct. reasonably is certain to conduct proof defendant The burden of cause result. by a prove an affirmative defense Voluntary intoxication does not consti- preponderance of the evidence. of a tute defense commission “preponderance of the evidence” term crime. greater weight means the of the credible evidence. purpose For the of this section “intoxi- Now, therefore, mental or you
cation” means disturbance of if find and believe resulting in- physical capacity beyond from the a reasonable evidence into the defendant committed troduction of substance doubt murder, find you further body. offense but preponderance of the evidence mal. through She not follow with hav- at the time of charged, ing appellant the conduct committed. defendant as a result of severe mental days A few killing, appellant before the defect, disease or did not know that her told her mother that she was to hurt wrong, you acquit conduct was will in way that would hurt her the most. say by defendant your verdict “not Appellant’s very mother was close to her
guilty by insanity.” reason of granddaughter, Meara. She testified that Following summary is a of the relevant temper, had a violent and related evidence: Appellant’s stories to that effect. mother testified she was “sure” knew Appellant began the fall semester at the difference between Community College Alvin in 1989. Her *4 the date of the offense. English professor Ap was Dr. Dickie Fox. pellant approached early Dr. Fox in the days killing, appel- About 10 before the September requested weeks of help and lant asking wrote her a letter ex-husband obtaining employment. During the conver help getting for his Dr. Fox out of her sation, she told him that she wanted to be mind. She wrote that Dr. reading Fox was his mistress and him up wanted to set her trying crazy, her mind and to her drive and apartment. in an Dr. Fox was shocked and thought help she her ex-husband could refused her proposal. About the first because he knew “all about God and stuff.” October, appellant week of delivered a note Raymond Kirkland testified that on No- asked, to Dr. you Fox that “What do have 8, 1989, day killing, vember against Why you me? don’t love me?” appellant spent day four-year- with days appellant About four after with Meara, daughter, old and 11-month-old drew from school. ap Around October son, Frankie, Ray Kirkland’s home. pellant Fox, came in to visit with Dr. ac Appellant Kirkland is Frankie’s father. companied by daughter. At that meet separated and Kirkland had about three ing, why her, she asked him he didn’t love prior months to the offense and were at- why saying and asked he things bad tempting Shortly to reconcile. after Kirk- about her. talking She accused him of work, Kirkland, land returned home from about her on the car radio and television. appellant, and the children went to opinion, Dr. Fox’s at the time of that Rosharon, lant’s home about a 40-min- meeting, appellant last knew the difference drive, away. During ute drive Kirk- wrong, between and though even she cigarette land lit a marihuana and shared it apparently problems. had mental appellant. with Appellant’s mother, Vaughn, Ruth knew they got When to the house at about 7:00 about infatuation with Dr. Fox p.m., put upstairs 7:35 the children were appellant because had accused her of work- Appellant their bedroom. and Kirkland ing keep with Dr. Fox to appellant from outside to went feed the chickens and hors- getting job. Appellant further told her They spent es. talking, appellant time mother that Dr. Fox messages sent to her away told going Kirkland she was “to the through the ads on the car radio. moon,” other side of the and she was the days
About 10 house, killed her They “chosen one.” returned daughter, appellant mother, called her shortly something Mrs. heard break and Vaughn, going and told her she was to “Meara hollering Ap- that Frankie did it.” commit suicide. Vaughn appel- pellant Mrs. felt found Meara had broken a music help lant needed some and contacted the given appellant. box that Kirkland had County Brazoria mental health deputy Appellant picked up then Meara’s Care procedure about the for a mental commit- Bear music box and broke it front of her. ment. Someone from the mental Appellant health changed and Kirkland then department appellant, went out to see diaper, Frankie’s took a reported Vaughn to Mrs. they that when shower. prepare Kirkland started to din- got there, everything ner, seemed perfectly nor- but found he did not have condi- station, appel- police needed, Upon arrival at the and went to the store. ments he justice of the upon to testified that his return lant was taken before Kirkland house, Dubose, met him front read peace, Wayne at the who Kirkland he did un- rights. drive. She told not want Dubose go able upstairs because he would never be read rights when derstood each of her Appellant see. forget what crying. Ap- appellant was her. He stated daughter explained killed her she because anything about a pellant never mentioned she was afraid illness, nothing about mental infant son. harm her mentally ill. made feel she was Dubose every- like appellant acted Dubose stated Appellant spoke Kirkland called 911. one else. operator response and in with the 911 it, question why she did she said warnings magistrate’s After the were know, something came over her didn’t Dorman read to officer Davidson him about it that she’d tell later. appellant. Appel- had a conversation appellant’s telephone con- tape recording of said she to make a statement. lant wanted dispatcher police versation with Appellant caught grammatical some errors played jury. typing her made Davidson while state- Kirkland if the Appellant told authorities redo ment. made Davidson *5 get there, hurry up and she was pursuant Ap- statement to her direction. appel- Kirkland going to leave. during the pellant no emotion mak- showed killing daughter against lant her knew statement, ing except when she was the law. He stated knew it was daugh- describing to her what she had done against they the law because had discussed Appellant indicated she did not ter. never how child abuse is. Kirkland said on, going nor did understand what was she temper, gave has a violent and indicating in a she was behave manner further examples. Kirkland testified he mentally ill. jail, had visited while she inwas was admit- Appellant’s written statement and appellant anticipated told him she she states, in It relevant ted into evidence. might “get insanity.” off on part:1 The first officer on the scene testified I in years age; I am 27 was born home, upon arrival at Penn, Brookfield, pres- and at on 5-11-63 incident, appellant shortly after imme- following my I address ent consider the responded diately only trying she “was Drive, Rosharon, Tex- home: 4803 Lake keep baby.” her from graduated High Alvin as. I School Appellant explained just got “that she had I the En- in 1981. read and write can upset with the child and that had start- you to tell glish language. I like ed fighting her.” The officer read tonight. happen at this time what rights, lant and said she un- Fig on I been at friends house have appeared Appellant derstood them. calm day today my Angleton Lane in all with quiet Appellant and at the scene. showed daughter, Taylor, my Brooke Meara weapon where the murder officer I Franklin Don Kirkland. rode with son located, Appellant kitchen sink. in the friend, stayed I Raymond Kirkland. gave height, weight, the officer her at work. At day there all while he was eye gave the and hair color. also Raymond took around or 7 P.M. me daughter’s full name and birth officer While home kids home. ap- The officer testified date. Raymond ciga- a marihuana pulled out peared cried in getting lucid and she while up. passed rette and it We then he lit police of his car. The back officer in the car back and The kids were nothing about indi- forth. testified that got turned with us. we home we did not know the difference be- When cated she wrong. the TV TV the right and after we moved the tween reproduction appear original. in this Grammatical errors the statement in the I just crying. just kept saying, don’t back room. We wanted to be alone. She TV, put Raymond plugging While to die. I then the knife to her want changed I went into the bathroom chest and tried to cut her. It didn’t work diaper. changing put Frankie’s After the di- Iso the knife to her throat and held I aper we both into the kitchen and thought went it there for a minute. I she was put Frankie into his crib. Meara was going to die slow I so took knife and Ray- her bed Frankie’s crib. Me and stabbed her a bunch of times. I do not mond went down stairs and fed the hors- many know how times. Meara started telephone es. I fall to the heard crying. thought ringing. floor and I it was I stabs, I then cut her After the first few my then went back inside and found breathing. throat because she was still baby boy floor music box broken. Her head fell almost off the bed. Blood I found music box Meara’s room squirted my everywhere. I face and Raymond ask Meara bed pushed her head back so she could bleed happened. that she what had She said I then took the knife to the better. just kept saying didn’t do it. Meara put kitchen and the knife in the sink and got she did not do it. I then mad and my washed the blood off of hands. Be- I threw Meara’s care bear music doll. body up I I fore did that covered Meara’s broke it in front of her. Meara except my After I feet. wash then sat down on her bed and held her picked up. hands I then went and Frankie I face with her hands. said that’s the put my hip I we then Frankie you anything last time that break will walking I this around the block. believe mine. I then went to the bathroom and I happen all around 8:00 P.M. then got I out the shower took shower. stayed Raymond until come outside back got I I and after dressed went into groceries. he drove in When *6 cooking Raymond kitchen and was way got passenger drive I in on the Raymond steak. I told that I did not Raymond I had side and told what done. any put have mushrooms onions to Raymond upstairs me and he ordered go the steak. He that would said he to Raymond I followed me. told Raymond I the store. walked down and that I covered Meara was the bed got stairs and he into the car and left. I up. Raymond her then went bed then went back and fed horses. I then Raymond and uncovered her. then or- upstairs went back because I heard some me sit and he went to the dered to down coming
more noise from the house. help. I telephone called for sat on got upstairs way IWhen Meara was half police called the kitchen floor. back get up I in-Frankie’s crib. told Meara to I gave phone me the Raymond get in got her bed. She in her bed. I had done. police told the what I I was real mad at Meara and saw her I killed Meara for several reasons. One almost in Frankie’s crib. When I come support longer is I could no afford to got the house I went to the kitchen and Two, pain her. I could not take the my green army that I had knife away. I could taking her real father her already kitchen shelf. The knife was Meara told me that not stand it because I open. already Meara was in bed. went he She scared treated her real bad. was to the bed and sat down on it. This was a different child ever of him. She was up I pulled when her shirt over her head. got I real father’s time her back. Her said, I Meara then don’t want to die. Joseph Taylor. name is Allen I think at I my Meara saw the knife hand. said Navy in this time that he is in the Scot- yea you do. Meara said I die. don’t wana land. I I nothing. pulled said then her shirt trashing her head. around over She day the 9th my
too much. I did this to hold her still. I Witness hand this o’clock, a.m., November, A.D.1989, pulled at 1:50 then her arms behind her back so stop moving Angleton. she would around. She was daughter, when she was not Meara was her Taylor
/s/Valerie Susan really daughter. begin- her She recalled body 20-30 stab Meara’s had wounds ning daughter, and when Meara to stab her area, and her neck chest and abdomen die,” kept saying, appel- “I don’t want way cut in such the carotid thought lying make lant she was artery severed. Appellant recalled at lant even madder. Appellant guilt-innocence testified at point one she asked herself whether was phase of the trial. She testified that sever- right, and at her infant son she then looked death, strange al Meara’s weeks before thinking cry to scream or that if he was her began occurrences around house that wrong thing to she’d know it be the special significance had a to her. The thereby crying, con- do. Her son was not neighbors dog “Taylor” named their firming Ap- her actions. the correctness of dog puppy. killed new question pellant up said not to her to it was twisty pepper plants grew pep- all and the actions, just for her the correctness of her pers very big, gave Appel- get didn’t which obey. Appellant feeling described dark, scary feeling. lant a The chickens feeling “force.” recalls Appellant “God” quit laying eggs, and the hibiscus bloomed had “used” her. when all the other flowers died. Appellant admitted she did mention Appellant her professor, testified that forces, voices, anything about com- mind, Fox, Dr. could read her and other daughter, pelling her kill her either to people’s pro- minds too. She indicated police. Kirkland or she did everywhere; songs fessor that he put belief, anyone tell about professor on the feels that her radio. She on the actions were correct based fact daughter’s reason for her death. she met cry, infant son did not until What understand she does not is how he Malone, expert Dr. Paul wit- has, comes the forces that about had ness. admitted she become forces that he transfers into her brain angry smoking after marihuana somehow. past, and such use had caused her react offense, night On the Appellant violently. told boyfriend that she was expert regarding Two witnesses testified somewhere. didn’t She want to but she night appellant’s sanity on the of the of- to, she had no choice. She felt she had *7 Malone, appellant’s fense. Dr. Paul ex- something. to do She couldn’t let God January pert, appellant on examined down a lot other people. and whole She days two months and three after boyfriend told her she was Fason, appellant child. Dr. Fred killed her the moon. That she was the chosen one. appellant on expert, the State’s examined Appellant angry testified she was with 11, 1990, April days and three five months her, her daughter day on the she killed for she her child. after killed breaking appellant’s trying music box and psychologist. Dr. Dr. Malone is a clinical get into her infant son’s crib. She re- approxi- appellant for Malone examined feeling compelling called a force that made mately three to four hours order to go room; upstairs her into her children’s sanity. competency determine her To thinking daugh- she she had to kill her end, Dr. six this Malone administered stan- only ter. thing She recalled in her dard tests. daughter. mind kill was to As she Appellant what she re- explained could Meara, looked she saw she had dark daughter’s night member of of her eyes. Appellant thought circles under her He testified that death to Dr. Malone. Meara punch- was not Meara. She recalled something she said she to do for the ing her if it daughter to see made her “feel bad,” something thought Lord. She it had to do and therefore to determine whether moon; go through something she the dark of the stabbing could her. with side looking thinking kept making go upstairs, kept She recalled at Meara and her want to thinking telling go devil had tricked into before she chick- she better Appellant explained punched ened out. appellant’s she believe marihuana use on the eye night in the to see if she could of the anything offense had to do it, bad, actions, do and she didn’t feel so she knew with her marihuana use schizo- Appel- she could phrenics trigger psychotic episode. do what she had to do. can a explained acknowledged appellant lant further the first two He could be “fak- stabs, ing” she was mad. severity She was mad at her of her mental illness just After kept “get insanity,” ex-husband. hear- order to off on but he did ing song saying a “go appellant “faking.” for the throat.” It not believe was then that she looked at her son and he Fason, expert, Dr. the State’s is a medi- scream, didn’t so she knew what she had psychi- cal doctor whose field of medicine is right. done was told the Dr. She Malone atry. He has examined between 1500 and thing whole was a trick of the devil. 2000 criminal purpose defendants for the appellant para-
Dr. Malone determining competency concluded is a their sanity. noid schizophrenic psychotic who was appellant approxi- three Dr. Fason examined before, during, day minutes, to four weeks mately during which time he killing. appellant after the He stated that the most visited with took a thing triggers psychotic psychiatric common a test. indicated she episode paranoid schizophrenic’s thought is that a someone had control over her mind support sense of making things by is threatened some and someone was her do way. hypnotism. She said the events of the of- God, planned by fense were and she did not Dr. Malone further testified he did not want to “let God down.” think knew during the period prior three to four week Dr. Fason based the conclusions he killing, as well as when she killed reached on his interview with his child, mother, appellant’s therefore she was insane at interview with a letter the time of the ex-husband, offense. Dr. Malone based had written to her statements, his largely conclusion tape recording state- witness ment to him appellant speaking operator that she knew she had “done with the 911 right thing” offense, night because her infant son did on the sight not scream at being of his sister written confession.
killed. diagnosed appellant being Dr. Fason
Dr. “paranoid personality Malone also testified that at the time disorder who decom- offense, pensates psychosis para- knew she had at times into a knife in her hand schizophrenia.” and that it could cause noid He stated that al- However, harm to someone. Dr. though appellant psychotic Malone at the time child, say could not whether knew she she killed her she was nonetheless stabbing being during a human paranoid schizophrenic sane. He said a killing, though even he believed psychotic state would have false beliefs *8 delusions, identify daugh- have been able to her and act on frequently part ter “at least of the time.” He conclud- he be- those beliefs or delusions because appellant ed that a faulty had sense of lieved it must do. Dr. something was he right wrong, and psychotic and that even if she Fason in a knew testified that even state, stabbing being, she was a human can paranoid schizophrenic and knew a still law, against right thought that was she and still know the difference between doing right. wrong. what she was was
Appellant told Dr. use marihua- explained Malone that after she Dr. that Fason car, smoked the by schizophrenic, marihuana she be- na such as paranoid a gan laughing event, crying psychotic at the same a trigger time can stop. Appellant psychotic and could not appellant said she had but he was a believed daughter during trip told her marihua- to her state she smoked the even before house, that she was to kill her. night Dr. na on of the offense. He said although Malone testified that he use of marihuana on the eve- jail. Each testified lant she is ning contributory cause while question awas with their contact appel- nothing there about was of her actions because loosened believe make them appellant that would temper. Dr. Fason lant’s control over her know the difference be- appellant did not explained killed her because appellant child wrong. temper. right and Appellant tween she lost control of her angry had with told Dr. Fason she become door couple next A who lived retired Appel- prior killing. daughter her Bliss said he testified. Dale appellant also she madder at lant told him even became appellant for four had known and his wife daughter during her the act because her appel- years. He remembered when or five die,” daughter saying “I don’t want to kept building their her were lant and husband daughter her was appellant thought kept always her place. appellant He said lying to her. spent a lot of time daughter clean. She her, impression with he under the find no and was testified he could evi- Dr. Fason though appellant daughter, even loved her legally insane at appellant dence was that hug he her. He never saw her kiss the offense. He said al- the time of appellant’s personality traits as described though a severe mental de- appellant has a normal” she had bad “below because fect, knew actions nonetheless her she temper and would cuss and scream and wrong. Fason his conclu- were Dr. based many carry angry He her times. on. saw him sion on statement to appellant fights He witnessed fist between thought she her were actions Kirkland, appellant with be- Raymond time, just but that she did not think about he ing instigator. The last time saw appellant’s “post-action it. He also stated days three before the was about indicate under- rationalizations” horses and killing. Appellant was with her struggle, went an internal due to the fact acting normally. was Appel- wrong. she her actions were knew during lant rationalized her conduct wife, Sylvia, was asked Dale Bliss’ telling commission the crime little tell the bit defense counsel to daughter to die. she wanted ra- personality. Ms. about immediately tionalized conduct follow- that, up Bliss to about six months killing by ing telling Kirkland good killing, appellant before police investigating officer she killed her happy to Meara and Meara was mother thought child because she change in child. noticed a definite She trying Appel- to harm her other child. months appellant and Meara about six be- lant rationalized her conduct in her confes- Appellant looked dis- fore Meara’s death. shortly killing by sion after the made ex- time, "just traught all the and Meara didn’t plaining she killed her child because she during anymore.” It happy look longer support could no afford ap- Ms. Bliss noticed last six months that daughter, daugh- and she did not want her marihuana; smoking had pellant never away. ter’s real father to take the child seen smoke marihuana before killing, Ms. days that. A few testifying Also at trial was a second col- Frank- Bliss asked where her son professor lege had who contact Appellant responded ie that “she was. during appellant’s expert lant time con- him gave couldn’t afford him and she psychotic and tended unable daddy.” the difference know between wrong. He stated at the time *9 times, At 8.01 all relevant section any- not do contact with pertinent in provided Texas Penal Code thing make him not think she did know part: wrong. the difference between and (a) prose- defense to It is an affirmative the conduct testifying nurse-jailers, time of Also were two cution at the actor, of se- charged, as a result one of had contact with whom defect, offense, or of the other mental night and the vere disease wrong. conduct was whom continues to have contact with know his 468 8.01(a) (Vernon exclusively lies province § within the of the
Tex.Penal
Code Ann.
1992).
jury,
only
credibility
as to the
of the
weight
evidence,
witnesses and
but
purpose
The
insanity
de
as to the limits of the defense itself. Gra
fense issue is to determine whether the
ham,
952; Ward,
while Patel anyone 720 S.W.2d tell she came in contact with at disagree 896. He immediately testified would not the following offense with Dr. “compelled kill, Srinivansan’s conclusion that Pa- by forces” to or that tel suffered from a mental disease that she knew she right thing had done the prevented right him from knowing from her cry. because infant Appel- son gave at specific the time of the offense. Id. lant reasons daughter confession, in her making written presented The State 12 lay witnesses on God, devil, no reference to the or com- the issue insanity, of Patel’s included which pelling Many forces. witnesses testified people Patel, who had done business with appellant’s temper, about violent the police shortly officers who saw Patel after jury heard from a number of witnesses he had hospital, been from released the appellant’s about recent use of marihuana long-time acquaintances two Patel with the effect it had on her. whom he days had visited a few the Patel, shooting. prove 720 S.W.2d 896. “In had the burden summary, when she these witnesses Patel stabbed her her mental businessman, man, prevented was a good knowing disease her from quiet a they wrong. jury man conduct was angry, had never seen was to make and man finding its on appeared who this issue accordance with every respect.” normal in greater weight of credible evidence be- it. jury’s fore It is our conclusion that the In concluding that a rational trier of fact finding against insanity appellant on the could have determined that failed Patel great weight is not against defense so prove the insanity by prepon- defense preponderance evidence as be evidence, derance of the and that evi- manifestly unjust. sufficiently supported dence jury’s im- point error five. We overrule plied finding sanity, quoted the court portions above-cited regarding Graham one, point In of error asserts nature of the and the defense by charging jury the trial court erred lay role of jury, expert witnesses and voluntary guilt-inno- intoxication testimony determining the ultimate issue stage, cence because intoxication was not of Patel’s criminal responsibility for his by point raised of error evidence. acts. two, appellant intoxi- asserts unfairly cation instruction shifted the bur- present case, In the the jury heard two proof appellant. den of expert agreed who witnesses disturbed, mentally disagreed but who long held that the Texas has law about whether knew jury fully charge trial court must wrong at the time offense. every affirmatively applicable to on the law tape heard recording con- evidence, issue raised whether such police versation dispatcher with the imme- produced evidence be the State or the diately killing, after the read writ- defense, feeble, strong is and whether it ten signed confession that she soon after v. unimpeached Kibbe or contradicted. offense. The heard from various 494, 733, 112 State, S.W.2d 133 Tex.Crim. witnesses who dealt immedi- State, (1938); v. 734 see Booth ately immediately before and the kill- after 498, (Tex.Crim.App.1984). 500 ing; all of these witnesses testified that give instructions that are trial court must they nothing observed to make think them every legitimate applicable to deduction daugh- did not know stabbing State, from the evidence. Gilmore v. 666 ter was wrong. prison While she (Tex.App. S.W.2d — Amarillo trial, awaiting appellant said she ref’d) (citing pet. Williams “get insanity.” this, off Knowing (Tex.Crim.App. Op.] [Panel 1980)). Therefore, before it in-court testi- if the evidence an raises mony compelled charge proper about the forces that and a issue on such issue act. The jury requested, knew that ly then a that issue
471 requested in- Any special The Court: Gilmore, given. must be 666 (citing Day structions? inquiry, (Tex.Crim.App.1976)). proper No, sir. Defense Counsel: therefore, evi- is to whether the determine charge volun- argues the on Appellant the of dence at trial raised issue adduced improper because tary intoxication was intoxication, voluntary as to so rely “temporary insanity due to on Gilmore, 666 an instruction. warrant See defense, charge the as a intoxication” S.W.2d at 156. unfairly placed the on burden Appellant complains about the inclusion the cause her marihuana did not prove in the following of the instructions insanity. charge: proper charge claims The State the Voluntary intoxication does not consti- upon the defense “relied because of tute a defense to the commission insanity in this case and there was evi- of crime. which tended show that ‘... such dence purpose For the of this section “intoxi- ’ ” insanity by ... was caused intoxication means disturbance of mental cation” words, if urges other the State In in- physical capacity resulting from the appellant did know any the troduction of substance into offense, such state of mind the time body. by the caused marihuana use. 8.04, language This tracks section subsec- appel- at trial indicated that The evidence (a) (d) Penal tions of Texas Code. past in the recent lant had used marihuana 1974). (Vernon 8.04 § Tex.Penal Code Ann. differently. her to act and that it caused (b) (c) of 8.04 delin- Subsections section showed that the evidence charge eate when court shall a few temporary insanity on lant had smoked marihuana within due to intoxication: killing of her child. Kirkland testi- hours (b) insanity temporary Evidence of child, shortly killing her fied that by caused intoxication be introduced going to “babbling on” about appellant was by mitigation actor penal- being moon” and “other side ty attached the offense for which he is one,” that he attributed being tried. “the chosen to her marihuana her irrational behavior (c) insanity is temporary When relied evening of offense. use on the upon as a defense and the evidence tends leading describing immediately the events by insanity to show that such was caused child, relat- of her intoxication, up to the death charge court shall expert psychiatric ed to the State’s provisions in accordance with the following: this section. way home. joint on 8.04(c) (Vernon I smoked Code Ann. §
Tex.Penal Before 1974) added). feeling funny after that. (emphasis Started home, this vacant lot got I there’s even following objection made we that me. Before drove that scared voluntary inclusion of I my daughter I that was place, told intoxication: kill her. It was like sudden going to Honor, Defense Counsel: Your at this anger her. There was flash towards object tem- time to the instruction reason. no porary insanity, voluntary intoxication guide- that does not come under that further psychiatric expert The State’s lines of Section 8.04 the Penal Code. killing appellant’s act that raising And we are not defensive losing result of was the go particular issues temper, use of and that her control instruction. night of offense marihuana objection That is overruled. Court: “markedly” over her affected control Do have further you objection? use temper. He concluded No, her control Defense Counsel: sir. of marihuana loosened temper, ultimately edge which resulted in appel- was due to intoxication daughter. lant temporary caused intoxication. Id. at 201-202. In similar statements made to her own psychological expert describing evening The evidence adduced at in Jaynes trial *13 offense, appellant of the appellant related “I showed the was intoxicated on joint laughing smoked a started question. and the date in Several witnesses crying at the stop.” appellant appeared same time couldn’t testified the intoxicated. Further, When asked whether felt that the mari- Id. at during 200. the State’s chief, huana had anything do with her case in the doctor who treated the child, appellant responded appellant as in emergency diagnosed follows: the room appellant the suffering drug as No, from a I’ve smoked marihuana during a lot finding overdose. 202. In Id. at that the my gotten life. And I’ve made after trial proper, court’s instruction was the smoking. maybe And the worse I’d do is following: court stated the slap Raymond something like that. killing,
But that is lot different Article than 36.14 of Tex.Code Crim.Proc.Ann. punching somebody. requires judge the trial to deliver to the jury charge distinctly which sets forth charge voluntary A intoxi applicable the law the case. [Section generally belongs cation in the court’s states is intoxication 8.04] charge punishment stage, at the not at the not a the defense to commission of crime. guilt-innocence stage. Rodriguez State, v. Thus, in when evidence came which 594, 513 S.W.2d (Tex.Crim.App.1974). 595 might jury the have led believe that This is because Tex.Penal Code Ann. appellant of was intoxicated at the time 8.04(b) (Vernon 1989) provides that § evi the might offense and this have contrib- insanity dence of temporary by caused in knowledge uted to her defense of lack of toxication mitigation be introduced in offense, proper was However, of the penalty for an offense. in jury court to instruct the on the appropri- the following cases, the jury instructions, ate law. In the evidence view before that voluntary intoxication is no defense to error, jury, this omit- [cite crime, were proper held be at the jury The free to find that ted] guilt-innocence phase. Jaynes State, v. knowledge lant had no of the accident as 198, 673 S.W.2d (Tex.Crim.App.1984); 202 long they as did not lack of attribute State, 507, Williams v. 567 S.W.2d 510 knowledge to intoxication. ref’d) pet. (Tex.Crim.App.1978, (citing Jaynes, at 202. Goodgame 129 Tex.Crim. 86 (1935)). case, present 754 In the there was evi- also might dence “which have led” In Jaynes, appellant was convicted of appellant believe that intoxicated failing stop Jaynes, and render aid. offense, the time of the and that such S.W.2d at 199. The trial court’s “might have intoxication contributed” to instructed the if jury that did not Therefore, insanity. claimed know she complainant had struck the with the trial court did not err instructing the automobile, constitute an jury on intoxication. as affirmative Id. at defense. 201. The trial Jaynes, free to find court went on to instruct the jury that long they insane “as attribute” neither voluntary intoxication nor tempo- to intoxication. rary insanity of mind caused intoxi- any cation could Williams, constitute defense to was convicted Appellant objected crime. Williams, Id. attempted latter murder. portion instructions, of the arguing charged S.W.2d at trial court 507. The such instruction constituted comment during guilt-inno- intoxication weight trial, unduly evidence and lim- stage cence ited her defense because was in contended such improper. instruction was way no asserting that her lack of knowl- Id. at 510. The evidence intoxication writing, distinctly speci- only tions thereto evidence was weak. Williams objection. fying ground each tending to show intoxication was the that he had (Vernon statements been art. 36.14 Tex.Code Crim.P.Ann. drinking at the the offense and that time of Supp.1993). Id. he had “too much to drink.” action reflected complained who had All four of the been witnesses the record: and at the mo- page is signature The Court: Behind the offense testified ment committed Om- possible forms of verdict. two [sic] drinking of had been no alcoholic there heading. itting reading of the formal shooting. beverages Fur- before the jury having found Verdict: We the ther, officer testi- investigating police an guilty of Taylor Susan defendant Valerie *14 shortly the the after fied he saw punish- murder the offense of assess “[appellant] not intoxicat- shooting penitentiary in the ment at confinement officer time.” The also ed at Id. counsel, it for a of “blank”—and term investigating that when he “years” seems to me it could be the word crime, the had not seen the scene of he Any objections? should stricken. be beverages of the wit- alcoholic and none No, your The State: Honor. spoke appeared intoxicated. nesses he No, sir, your Honor. Defense Counsel: Nevertheless, found the in- Id. the court the word The Court: The Court strikes proper. struction So, read, jury the “year”. it would “We having Su- cases, found the defendant Valerie light In of these we conclude the mur- Taylor guilty of the of san offense proper. trial court’s instruction was Ac- der, punishment at confine- assess her cordingly, points we of one overrule error of penitentiary a term ment in the and two. “blank”, years— more 99 being not than four, points In of error three and bench, approach the counsel. by asserts court the trial erred record) (Brief the off discussion failing comply with article 36.14 the of counsel, Any objection, to the The Court: of during Texas Code Criminal Procedure way changed first verdict the the Court’s phase punishment point the the trial. In form? three, argues of error the trial she court Nothing from the State. State: weight commented on the of the evidence de- Nothing from the Defense Counsel: by correcting the verdict form as read it fense. jury by correcting to the the in form I jury, apolo- Court: Members point handwriting. his own error all, I’m gize, you. Secondly, first of four, argues give she the trial court not the first form its to read verdict counsel reasonable time to examine the entirety, your as it now be for present charge objections. consideration. provides pertinent part: Article 36.14 having found Verdict: “We Taylor guilty Susan defendant Valerie shall, argument judge [T]he punish- of murder assess her offense begins, deliver ... written penitentiary ment at confinement setting charge distinctly forth the law “blank”, being for a not more term case; expressing not applicable years 99 years, than nor less than five weight any opinion as to the of the evi- life. dence, summing up testimony, “blank”, assess a We further fine discussing using any argu- facts being $10,000, place not more than and a charge in his ment calculated arouse juror sign. presiding for the sympathy passions or excite the charge is jury. Before said read to by Appellant argues that the trial court’s jury, the or his defendant counsel and the deletion of the word statements form, judge shall have a time to “years” reasonable examine from the verdict only present objec- opinion the same he shall his informed the of his incorrect, appropriate, changed. one verdict the one of was needed to be addition, appellant argues “life.” In that Our review of the record convinces us the by trial the handwritten corrections trial court’s correction was neither calculat punishment. emphasized particular court injure rights ed to nor did making appellant argues that deny impartial her a fair and trial. See jury, the correction before the trial 867, (Tex. Gant v. providing court read the verdict form for a Crim.App. 1980); Op.] Lewis v. [Panel times, compared life sentence three with State, (Tex.App.— 460-61 probated once for the sentence verdict pet.). Houston no [1st Dist.] argues, jury, form. The returned a points We overrule of error three and life, “exactly” the sentence of sentence em- four. phasized by the trial- court. judgment. We affirm We first note trial counsel did object or to the unreason- dissenting. Justice O’CONNOR required ableness of the time for review as counsel, article 36.14. Nor did O’CONNOR,Justice, dissenting. instruction, special requested call trial I dissent. The instruction on *15 charge court’s attention to error in the as justified by intoxication not the evi- was State, required by Ussery article 36.15. v. dence, law, permitted by is not the and (Tex.Crim.App.1983); 651 S.W.2d prejudiced appellant's the defense of insani- 36.14, arts. 36.15 Tex.Code Crim.P.Ann. adding ty by impermissibly to the (Vernon Supp.1993). Where there is no proof. lant’s burden of objection charge jury, to the court’s to the is: When question The we address and nothing preserved is review. Thiel what circumstances evidence of use of (Tex.Crim.App. (not a minimal amount of intoxicant intoxi- 1984) is, however, (op. reh’g). appro It itself) insane, is by person cation a who be priate to view the record as a whole in jury temporary sufficient to instruct the order to determine fundamental whether insanity? presented. Ussery, error is 651 S.W.2d at request ap- and over the Article 36.19 of the Texas Code of At the State’s provides: pellant’s objections, Criminal Procedure the trial court instruct- jury voluntary ed the that intoxication was appears by any Whenever it the record in not a defense and defined intoxication as a upon appeal any criminal action re- capacity physical 36.14, 36.15, disturbance of mental quirement 36.16, of Articles resulting from the introduction of sub- disregarded, 36.17 and the 36.18 has been The had three body. stance into the judgment shall not be reversed unless charge: not options response to the appearing the error from the record was insanity, guilty, guilty by reason of injure rights calculated to the of defen- not dant, did not con- appears guilty. appellant Because the unless it from the rec- daugh- ord that that she killed her the defendant has not had a fair test the evidence ter, options: impartial objections actually only All had two trial. to the special guilty. refusal of guilty by not reason of charges shall at the time of the intoxication be made The instruction trial. of intoxication skewed and the definition of insani- proof on the issue the burden (Ver- art. Tex.Code Crim.P.Ann. art. 36.19 required appellant was ty, so that the 1981). non insanity. prove did not cause her own she charge, We find the reformed court, paranoid schizophren- properly applicable appellant trial The is a reflected range punishment. original her confused condition form ic.1 To illustrate . child, appellant’s 1. Whether of criminal condition is a "severe killed her and thus is relieved child, mental disease or defect" such that “did liability the issue for the death of her wrong” know that conduct was when she [her] appellant child, also I sum- The State admits the time she killed her child. around killed condi- at the time she marize some of evidence of her not intoxicated child, ap- in- position on the tion: Just before The State’s her child. pellant aggravated side going said she was to the other that the struction is one;” moon, couple she was “the chosen of hits of by taking a her condition song for the “go problem heard a that said and she obvious marihuana. most child, throat”; stabbing she was while no statute position is that with the State’s son for looked her infant voluntary intoxi- permits the instruction on doing confirmation that what she was drug merely aggravated cation when force,” required by “the and when she saw in- illness, mental but did defendant’s cry, he did not she knew she was her. toxicate doing right thing; appellant said brief, argues mari- the State In its compelled she was kill her “psy- have a huana caused the black; eyes just were because her breakdown,” psy- and the chotic night, a vacant arriving home she saw triggered by the mari- episode chotic lot, her, told her which scared and she by the evi- supported That is not huana. her; a few daughter she was to kill opin- experts in their dence. Both testified killing, no- weeks before the ion, psychotic been significant things began strange ticed episode for about three weeks before neigh- happen around her house—the trig- agreed can killing. Both marihuana dog pepper killed her puppy, bor’s event, ger psychotic but plants grew “twisty,” quit lay- the chickens ex- already psychosis. The State’s ing eggs, and the hibiscus bloomed—which merely pert the marihuana loosen- gave scary feeling; her a months a few temper. ed the control of *16 killing, the the one of appellant said the Code 8.04 of Texas Penal Section professors talked ra- about her on the defines intoxication the “disturbance television, messages dio and sent her resulting from physical capacity mental or radio, through advertisements on the into the introduction substance the mind; appellant could read her the told her (Ver- 8.04 body.” Tex.Penal § Code Ann. professor try- former husband that the 1974). The in this case— non intoxicant ing crazy; drive her to the cigarette puffs on a marihuana two mother knew —did something was intoxication; testimony by the produce investigated having possibility the marihuana expert, of the State’s own the committed; killing, daughter after the temper.2 merely the loosened her, appellant the said “God” had used Thus, give to it was error the instruction down, had not wanted to let and the God voluntary intoxication. thing was a whole trick of the devil. majority relies two of the eases No evidence of intoxication voluntary in the instruction on permitting pro- objections, the appeal The main issue this is the over defendants’ toxication (Tex. State, 198, priety instructing 673 200 that volun- v. S.W.2d Jaynes State, tary Crim.App.1984), is not 567 intoxication a defense to Williams v. 507, Op.] (Tex.Crim.App. commission of a crime the State ac- 508 when S.W.2d [Panel appellant 1978). cases, knowledges the In defendant was not intoxi- both re appellant The State is a to be and did not cated. admits the claimed intoxicated paranoid schizophrenic psy- having resulting who was member committed the act episode at the Jaynes, chotic time she killed in the indictment. In the defen- jury, properly they charged, passed, which that the must decide. her off—the vacant lot (Vernon Supp.1993). her, § 8.01 Code scared after which she told her Ann. TexPenal her; "twisty” pepper she was to kill merely marihuana was the events one of lay eggs, plants, the chickens that to refused precipitated appellant's have ac- blooming hibiscus. paranoid schizophrenic in a tion. As psychotic who was state, anything almost could have set 476
dant,
drugs,
shooting,
intoxicated on alcohol and
before the
the defendant did not
another,
State,
drove her vehicle
injuring
appear
into
to be intoxicated. In Still v.
person standing nearby.
658, 659,
673
Jaynes,
709
(Tex.Crim.App.
S.W.2d
defendant,
1986),
S.W.2d
199. The
who was
though the
even
defendant drank
charged
failing
aid,
stop
and render
whisky
about a case of beer and some
nothing
testified she
afternoon,
remembered
about the
during
appear
he did not
accident;
thing
the last
intoxicated,
she remembered
be
because he could describe
driving
around with a friend.
leading up
his awareness and the events
Williams,
200. In
on a
defendant went
shooting.
Schenck
drinking spree, imbibing a combination of
(Tex.App.
Worth
— Fort
a.m.,
whiskey,
beer and
and at
he
10:30
pet.),
though
no
even
the defendant
Later,
people.
shot at a number of
when
(Valium
drugs
was under the influence of
up,
he
voluntarily
sobered
went to the
Etrifon)
(two six-packs
and alcohol
police station where he was told about the
beer), the
defendant was
entitled to the
Williams,
shootings.
is before the trial court is autho- given op- a fair should be give rized to voluntary instruction on portunity present her defense of insani- intoxication, proof there must be of two ty, having disprove implica- without (1) things: the defendant must have used a responsible tion that she is mental significant intoxicant; amount of the I by voluntary condition action. would re- (2) appeared the defendant must have in- verse and retrial because of remand for cases, following toxicated. In the the trial error in charge. give court refused to the instruction on voluntary intoxication because there was appeared
no evidence the defendant intoxi- Nethery
cated. (Tex.Crim.App.1985), though even
the defendant drank three “kamikaze” cigarette
drinks and shared a marihuana state, cigarette culpable 3. The proper shared a marihuana mental have with her common-law husband sometime be- attempting prove the intoxicant defendant p.m. p.m., tween 5:15 and 7:35 as she Here, drove changed her normal mental condition. ap- from Houston to Rosharon with him. The intoxication, because of the pellant p.m. killed her child about 8:15 required prove her defense the defendant prove that the intoxicant and also involving In most cases the use of an intoxi- change her normal insane condition. cant, attempts prove when a defendant she is responsible for the crime because she did