holding that focus of insanity inquiry should not be on appellant's morality, but should instead be on “whether [he] *14 We overrule appellant's second issue. understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others Admission of Storer's Testimony believed his conduct was ‘wrong’ ”
How later courts described this case
- holding that focus of insanity inquiry should not be on appellant's morality, but should instead be on “whether [he] *14 We overrule appellant's second issue. understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others Admission of Storer's Testimony believed his conduct was ‘wrong’ ”
- holding that focus of insanity inquiry should not be on appellant’s morality, but should instead be on “whether [he] understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others believed his conduct was ‘wrong’ ”
- holding that focus of insanity inquiry should be on “whether [appellant] understood the nature and quality of his action and whether it was an act he ought to do.... By accepting and acknowledging his action was ‘illegal’ by societal standards, [Bigby] understood that others believed his conduct was ‘wrong1 ”
- concluding trial court’s ruling was within zone of reasonable disagreement because evidence that defendant—who had pled insanity and did little to contest his guilt—threatened trial judge with gun and attempted to flee was highly probative of defendant’s guilt and enhanced State’s case
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, 542 U.S. 274 (2004)
892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (explaining that evidence of flight shows a consciousness of guilt of the crime for which the defendant is on trial), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274
The opinion
WHITE, Judge,
concurring.
In resolving appellant’s eighth point of error, the majority holds the trial court erred in the order in which it conducted voir dire. In the instant cause, the trial court decided both sides would make a decision on whether to challenge a veniremember for cause (with the State deciding first), before either side would decide whether to exercise one of its peremptory challenges (with the State again deciding first). The majority finds this decision did not comport with TEX.CODE CRIM.PROC.ANN. Art. 35.13. The majority interprets Art. 35.13 to mean in a capital case the State must choose to accept a *891 veniremember or challenge a veniremember for cause or with one of its peremptory challenges before a defendant or his counsel must decide whether they will challenge the veniremember for cause or with one of their peremptory challenges. As a result, the majority holds the trial court’s decision was in error.
However, the majority holds that the trial court’s “error” was harmless and overrules appellant’s eighth point of error. I concur in the decision to overrule the eighth point of error. But I do not agree with the majority’s interpretation of Art. 85.13, nor do I believe that the trial court erred in establishing the voir dire procedure which it chose to follow in the instant case.
In supporting its decision, the majority is only able to call upon former Presiding Judge Onion’s Practice Commentary to Art. 35.13. I believe the majority misinterpreted both the Practice Commentary and the statute.
Art. 35.13 requires only that the state precede the defense in deciding whether to accept or challenge a venireperson. The statute explains the challenges may be either peremptory or for cause. I believe this use of the disjunctive in the phrasing of the statute gives trial courts the discretion to permit the exercise of challenges for cause by both sides before moving on to any use of peremptory challenges. This, and not the majority’s interpretation, is the “fair, objective meaning of that text” in Art. 35.13. Boykin v. State, 818 S.W.2d 782, at 785 (Tex.Cr.App.1991).
The trial court complied with Art. 35.13 when it required the state to assert any challenges for cause before appellant and then, after both sides finished their challenges for cause, required the state to present its peremptory challenges before appellant had to decide whether to present any peremptory challenges. Neither the statute, or the Practice Commentary, support the majority’s decision that a defendant is entitled to have the last word on all challenges, to the extent that a defendant’s decision to challenge for cause comes only after the State has used both challenges for cause and peremptories on a prospective juror.
I believe the majority’s decision will lead to “an absurd result that could not possibly have been intended.” Op., at 879; and Boykin v. State, at 785. In the individual voir dire of most capital murder trials, the State takes a venireperson on individual voir dire before a defendant and argues challenges for cause as they arise during the voir dire. Trial courts usually permit rehabilitation by the defense before making a ruling on a State challenge for cause. The State waits on its decision whether to use peremptories until voir dire is concluded. The venireper-son is then passed to a defendant who follows the same pattern as the State: individual voir dire of the venireperson and requests for challenges for cause as they arise, with the State usually being permitted to rehabilitate, and then waiting until the end of the individual voir dire to exercise a peremptory challenge. After individual voir dire by the parties has been concluded, if a venireperson was not successfully challenged for cause by the State or defense, the trial court might question the venireperson at its own discretion. The venireperson will then be passed to the State at the end to see if they wish to use a peremptory challenge on the venireper-son, before a defendant must decide if he will. This has been the usual procedure followed in voir dire of the capital murder cases I have reviewed as a judge on this Court.
The State, as well as the defense, often urges challenges for cause during the course of their individual voir dire as soon as the answers of the venireperson raise the cause for the challenge so that they will not needlessly waste time on that individual voir dire. The State often does not decide whether to use a peremptory until after a defendant has finished his individual voir dire of a venire-person. This is done for the reason that during the individual voir dire of the venire-person by the defense, a venireperson might say something that will give the State reason *892 to use a peremptory challenge on that venire-person. Within this typical capital voir dire process, the majority's decision today will produce chaos.
To me, it is clearly absurd for us to interpret Art. 35.13 to require the State to exercise its choice whether to peremptorily challenge a venireperson before that venireper-son has even been passed to the defense for individual voir dire. The majority’s decision today will make this ridiculous scenario the rule in capital voir dire, because it will violate a right of a defendant if the State is permitted to exercise any challenges to a venireper-son after that defendant has requested his first challenge for cause of that venireperson. This is the essential type of absurd result that we spoke of in Boykin v. State.
I disagree with and do not join the majority’s failure to recognize that the trial court acted within its legal discretion when it conducted voir dire in a manner that comported with Art. 35.13.
Because the plurality overrules appellant’s eighth point of error, I concur in its judgment to affirm appellant’s conviction. With these comments on point of error eight, I otherwise join the opinion of the Court on the remaining points of error.
McCORMICK, P.J., and MILLER, OVERSTREET, and MALONEY, JJ., join this concurrence.