# Schuessler v. State

> Court of Criminal Appeals of Texas · October 15, 1986 · 719 S.W.2d 320

URL: https://www.frixlaw.com/law-library/cases/9768316

## Case

- **Full name:** David Leon SCHUESSLER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 15, 1986
- **Citations:** 719 S.W.2d 320; 1986 Tex. Crim. App. LEXIS 839
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Campbell, Clinton, Teague, Onion, McCormick
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Meraz v. State, 1990 Tex. Crim. App. LEXIS 4 (1990).
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768316

## How later opinions describe it (automated extraction)

- holding that evidence that defendant disposed of body near border check-point suggested he knew his acts were wrong, and testimony of several lay witnesses that defendant's conduct did not indicate insanity supported jury's rejection of insanity defense
- applying the civil standard of "against the great weight and preponderance of the evidence" because the defendant bore the burden of proving, by a preponderance of the evidence, his affirmative defense

## Opinion text

CLINTON, Judge,
dissenting.
Without unanimity the Court plowed new ground in Van Guilder v. State, 709 S.W.2d 178 (Tex.Cr.App.1985), and went back over it in Baker v. State, 707 S.W.2d 893 (Tex.Cr.App.1986). Within a week after motion for rehearing was denied in Van Guilder , this cause was decided by less than a plurality on original submission. Later I joined the opinion of Presiding Judge Onion dissenting to denying State’s motion for rehearing in Baker , primarily because he urged the Court to reconsider Van Guilder . Now, having analyzed Van Guilder from another perspective, I write to suggest that its formulation is based on an faulty premise and is, therefore, erroneous.
Derived from Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), which in turn built on In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), the notion guiding Van Guilder is expressed in the following passage:
“Because some review of the affirmative defense is necessary in such cases in order to afford an appellant due process under Jackson, supra, this Court, in keeping with the principles of Jackson, supra, must provide a standard of review consistent with constitutional law in this area and the inviolability of the jury as fact finders in Texas criminal law.”
Van Guilder, supra, at 181 . Therein lies the faulty premise.
While “some review” of evidentiary sufficiency going to an affirmative defense is surely appropriate, appellate review cannot be “to afford an appellant due process under Jackson,” nor done “in keeping with [its] principles.” Both Jackson and Win- *331 ship lay down a constitutional imperative that the State must prove and the trier of fact must find “the essential elements of the crime beyond a reasonable doubt.” Jackson, supra, 443 U.S. at 318-319 , 99 S.Ct. at 2788-2789 ). 1 Every “principle” followed or found in Jackson has to do with due process protection against being convicted of crime on insufficient evidence to prove guilt. Accordingly, the relevant question on review of all record evidence is whether any rational trier of fact could have thus found those elements of the offense charged. Ibid.
By definition, however, an affirmative defense is not an element of an offense. See V.T.C.A. Penal Code, § 1.07(a)(13), § 2.04 and, e.g., § 8.01. Neither Jackson nor Winship deals with due process requirements of sufficient proof or appellate review vis a vis an affirmative defense, and the Supreme Court “[will] not lightly construe the Constitution so as to intrude upon the administration of justice [in that respect] by the individual States,” because:
“[I]t is normally ‘within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,’ and its decision in this regard is not subject to proscription under the Due Process Clause unless ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, [citations omitted].”
Patterson v. New York, 432 U.S. 197, 201-202 , 97 S.Ct. 2319, 2322 , 53 L.Ed.2d 281 (1977).
Charged with murder and permitted by New York law to do so as a factor mitigating degree of criminality or punishment, Patterson raised the affirmative defense of “extreme emotional disturbance.” A properly instructed jury found “the essential elements of the charge [of murder] beyond a reasonable doubt,” implicitly rejecting his defense in mitigation. Before the Supreme Court the constitutional issue was:
“The question here is the constitutionality under the Fourteenth Amendment’s Due Process Clause of burdening the defendant in a New York murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law.”
Id., 432 U.S. at 198 , 97 S.Ct. at 2320 .
After reciting the facts of the matter, reviewing parallel developments regarding the defense of insanity from the common law through its own prior decisions and examining in light of Winship and related authorities the claim that his conviction for murder deprived Patterson of due process, the Supreme Court pointed out:
“In convicting Patterson under its murder statute, New York did no more than Leland and Rivera permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant’s mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence.
The New York law on extreme emotional disturbance follows this pattern. This affirmative defense ... does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson’s conviction must be sustained.”
Id., at 206-207, 97 S.Ct. at 2325 .
Refusing to reconsider Leland and Rivera, the Supreme Court then noticed current trends among the States in tailoring affirmative defenses as they fashioned new penal codes from model penal codes. While it is certainly true that in Patterson the Supreme Court was not formulating standards of appellate review for sufficiency of evidence supporting an affirmative defense, the point it clearly makes is that *332 the Due Process Clause is not a restriction on when and how a State “chooses to recognize a factor that mitigates the degree of criminality or punishment [and] assurefs] itself that the fact has been established with reasonable certainty.” Id., 432 U.S. at 209 , 97 S.Ct. at 2326 . Believing such matters are better reposed in the States, the Supreme Court “thus decline[d] to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.” Id., at 210 , 97 S.Ct. at 2327 . 2
Finally, the Supreme Court emphasized that holding the Due Process Clause is not violated by statutory treatment of true affirmative defenses does not offend principles of Winship, viz:
“Long before Winship , the universal rule in this country was that the prosecution must prove guilt beyond reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant. This did not lead to such abuses or to such widespread redefinition of crime and reduction of the prosecution’s burden that a new constitutional rule was required. This was not the problem to which Winship was addressed. Nor does the fact that a majority of the States have now assumed the burden of disproving affirmative defenses — for whatever reasons — mean that those States that strike a different balance are in violation of the Constitution.”
Id., at 211, 97 S.Ct. at 2327 . 3
When an affirmative defense is not an element of an offense charged and Win-skip is not implicated by allocation of burden of proving an affirmative defense, it follows that “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction” prescribed by Jackson v. Virginia is irrelevant to a review of sufficiency of evidence relating to an affirmative defense. The trier of fact was not called on to view the evidence in the light most favorable to the prosecution in order to find “the essential elements of the crime beyond a reasonable doubt.” Rather, its function was to determine whether an accused has proved an affirmative defense “by a preponderance of the evidence.” Whatever standard governs appellate review of that determination is not controlled by the Due Process Clause nor required by Jackson .
Just as a State is relatively free to provide for affirmative defenses, so also it may test sufficiency of evidence to support them by any reasonable standard of review. Presently Van Guilder precludes consideration of any other standard. Once the underpinnings of Van Guilder are removed, we may formulate a proper test. Given the increasing number of its followers we should act now.
Because the majority will not reexamine Van Guilder , I respectfully dissent.
ONION, P.J., and McCORMICK, J., join.
. All emphasis is mine throughout unless otherwise indicated.
. “Traditionally due process has required that only the most basic safeguards be observed; more subtle balancing of society’s interests against those of the accused has been left to the legislative branch. We will therefore not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.” Ibid.
. There are, of course, constitutional constraints on how far a State may go in reallocating burden of proof by calling an element of an offense an affirmative defense. Ibid. Compare Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768316. Public record. Not legal advice.