Van Guilder v. State

TEAGUE, Judge,

concurring.

The State erroneously suggests that regardless of the quality or quantity of credible evidence an accused person presents to the trier of fact to establish an affirmative defense, if the jury finds against him or her, then the reviewing court cannot disturb the jury’s finding. This is simply not the law of this State and has never been the law of this State.

The law, however, contrary to the State’s assertion, is clear: No matter how reluctant this or any other reviewing court might be to set aside the verdict of a jury, *184 it will not hesitate to do so when the evidence is found to be insufficient as a matter of law, or when the evidence going to an affirmative defense is established as a matter of law. In that instance, the reviewing court becomes the thirteenth juror with veto power over the trier of fact’s verdict.

The record reflects that the appellant was charged with committing five felony-offenses (1-murder; 4-attempted murders) that occurred during the same transaction or criminal episode. The jury returned verdicts of not guilty by reason of insanity on the murder charge and not guilty by reason of insanity on three of the attempted murders. Notwithstanding these verdicts, it found the appellant guilty of one of the four attempted murder offenses.

The appellant’s defense was that when she committed the offenses she was legally insane. In support of her defense, the appellant presented, in addition to lay testimony, five leading psychiatrists who testified that when appellant committed the offenses she was legally insane. The State did not offer or attempt to introduce any evidence to controvert or rebut the appellant’s affirmative defense of insanity, nor did it make any effort through cross-examination to discredit the appellant’s expert witnesses.

The majority opinion correctly sustains the holding of the San Antonio Court of Appeals, see Van Guilder v. State, 674 S.W.2d 915 (Tex.App.-San Antonio 1984), that appellant established her affirmative defense of insanity as a matter of law.

It is true, of course, that when an accused person presents any affirmative defense, he or she has the burden to establish that defense by a preponderance of the evidence. Once the accused person has satisfied that burden, and the State controverts or rebuts such defense, it then becomes the responsibility of the trier of fact to make the determination whether the accused person established his defense by a preponderance of the evidence. If the evidence is uncontroverted, as it was here, there is nothing for the trier of fact to decide, and the trial judge should instruct the jury to return a verdict of not guilty because of the uncontradicted and uncon-troverted affirmative defense.

Under our present law, the State has no burden to negate or disprove any affirmative defense, such as insanity. Nevertheless, and contrary to what occurred in this cause, it must not sit idle if the accused person presents an affirmative defense by credible evidence.

At least since 1919, when numerous and apparently credible witnesses testify that the accused person is legally insane, and such testimony is not controverted or rebutted by the State, this Court will not allow a conviction to stand. Kiernan v. State, 84 Tex.Cr.R. 535 , 208 S.W. 518 (Tex.Cr.App.1919). Also see Gardner v. State, 85 Tex.Cr.R. 103 , 210 S.W. 694 (1919). Cf. Smith v. State, 15 Tex.Ct.App. 338 (1884) (defense of self-defense may be established as a matter of law.)

Whether an affirmative defense has been established as a matter of law rests on whether the affirmative defensive evidence or testimony was uncontradicted. In Pittman v. State, 140 Tex.Cr.R. 264 , 144 S.W.2d 569 (Tex.Cr.App.1940), this Court, speaking through Judge Krueger, stated the following: “It is true the jury convicted the appellant, and their verdict is always respected and upheld by this Court when there is evidence upon which it might have been based; but when the verdict is against the uncontroverted testimony, it is our solemn duty to set it aside.”

The court of appeals correctly stated that “Jurors may reject the opinion of experts if it does not comport with their ideas of sound logic ... Jurors are not required to give conclusive effect to the opinion of experts, but they may not arbitrarily disregard such testimony.” Thus, when a defendant claims on appeal that he has established an affirmative defense as a matter of law, the question is not how much weight should be given the testimony of the witnesses, for that was the responsibility of the trier of fact; the question, in *185 stead, is whether the evidence that was presented established the affirmative defense as a matter of law.

In this instance, there is simply no testimony, either medical or lay, from which any rational trier of fact could conclude that the appellant was sane at the time of the offense. It is now axiomatic that a jury that totally disregards credible and uncontradicted evidence cannot be considered to have acted as a rational trier of fact. The due process clause of the Federal Constitution and the due course of law clause of the Texas Constitution forbid any conviction to stand when it is founded upon evidence insufficient to persuade a rational trier of fact of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979).

The majority opinion authored by Judge W.C. Davis correctly sustains the holding of the San Antonio Court of Appeals, see Van Guilder v. State, supra, that there is no evidence to support the jury’s finding that appellant was legally sane at the time she committed the offenses of attempted murder and murder. In sum, “[N]o rational trier of fact could have found [from the evidence that was presented] that appellant failed to prove her affirmative defense [of insanity] by a preponderance of the evidence.”

In this instance, because of the quality and quantity of the appellant’s evidence, adduced through at least five leading psychiatrists with unimpeachable credibility, and because the State presented absolutely no evidence of any kind to rebut or controvert the appellant’s affirmative defense of insanity, and no effort was made by the prosecution to lessen the impact of the doctors’ testimony through cross-examination, the cases should not have even been submitted to the jury; the trial judge should have instructed the jury to return verdicts of not guilty by reason of insanity on all of the cases.

I concur to the majority opinion affirming the judgment of the court of appeals.