Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE ATTORNEY GENERAL OFTEXAS
AUSTIN
Xonorable Reginald
District Attorney
HuntsviJle, Texas
Dear Sirr
Opinion NC. O-2872
Re: ,Jhether a judgment of conviotion
may be ooLlaterallp atzaoked in
I' the manner and under the cirouz-
' 'stancss described.
Your letter of xotiember5, 1940, direoted to this
Department, reads.!: part a8 follows~
~-Y .'
y-V. A. Briggs, an inma& of the Terse Feniten-
tlafp, has..filed appllostlon for his release from
prison‘upon a writ ot habeas corpus, allsglng that
the -jndgmnt and sentenos of conviction is void by
‘xeason of the fact that at the time he was oonvlcted
he had been Rrsviouslg adjudged insane, and that eaid
judgment had not;been set aside.
*Aa 1 undbrstand the case Briggs was adjudged
insane in the County Court of Harris County, Teraa,
about 1921, which judgment had not been set aside in
any manner at the time of hia trial in 1927, whioh
resulted in his incarceration in the Penitentlary,and"
being the judgment End sentmoe involved in this con-
test.
Honorable Reginald Braoewell, Page 2
“The case wherein Briggs was convioted and la
now serving time Is reported in 2 9. d. (Zd) 23S.
*I have a oertiried 00~7 or the charge of the
Court that wee given in that ease and no issue of
insanity wae submltted to the jury, It evidently not
having been raised in the trlel of this o~ee.~
Relating to these faots, you request our opinion
upon the question rtated by you as hollows:
"The legal prlnoipel involved in this oase la
whether or not a person who has been oonvioted of in-
sanity, and said oonviotlon not set aside, who after-
wards oommlte a orlminal offense nnd Is tried on said
crirnineloffense and oonvloted, and not having raised
the issue ot insanity in hls main trial, can after his
imprisonment be released upon a writ of habeas oorpus,
alleging that the judgarsntand oc;nvlotlonIs void, by
reason or the iaot that he was legally Insane at the
time of his oewlotlon.w
From your letter and the report of the case of Brlggs
v. State in 2. S. W. (Zd) at page 238, we oonstrue the fasts
to present simply the queatlon or a collateral attack, by a
habees oorpus proceeding, upon a judgment of conviction, grounded
upon the proposition that in virtue of an unvaoated judgment of
Insanity against the defendant many years before, his later
oonvlotlon ot a orlmlnal offense lo void, notwithstanding ths
failure of the acoused to interpose the defenoe of insanity
and to establish the judgment of insanity upon the trial of
the orininel oaae.
The habeas corpus applioetlon desorlbed In pour
letter is not, of course, one seeking to establish the present
ineanitp of Rriggs, In other words, insanity after oonvlctlon,
as contemplated by Article 921, et seq., of the Code of Grim- b
lnal Prooedure.
The preolse question which your letter present6 Is
an original one in Texas insofar as our careful investigation
has revealed.
Article 34 of the Penal Code of Texas provides:
Honorable Reginald Bracewell, Page 3
*No eat done in a state of insmity can be
punished as an offense. No person who becomes in-
sane after he committed an offense shall be tried
for the same while In such oondltion. No person
who beoDmes insane after ho la found guilty shall
be punished while In suoh oond1tion.v
Thls statute simply means that insanity at the time
of the oommlsslon of a orime Is a defense thereto, that in-
sanity at the time of the trial shall preclude a trial of the
orimlnal offense while the aoouged Is in snob condition, and
that insanity after conviction shall preolude punishment there-
for while the oondltion oontlnuea.
Evidence of the first, as a defense to the criminal
oharge, may be introduced under the plea of “not guilty*.
Article 521, Code of Crlmlnal Procedure.
The second authorizes and contemplates, upon timely
request therefor, that the aooused is entitled to and should
be given a separate hearing on the question of his Insanity prior
to his trial upon the criminal oharge. Rloe v. State, 120 3. V?.
(Zd) 388, and oaaes olted.
The third may be taken advantage of after oonvictton
of a orimlnal offense under the procedure outlined in Article
921, et seq. ( of the Code of Criminal Procedure. Ex parte
klllikln, 299 S.W. 433; Eaoue v. State, 227 S.W. 483.
Neither of the,foregoing was or la being avalled of
by Brlggs. 31s prior adjudication of insanity wae not shown
in his trial for robbery and no evldenoe of insanity presumably
was introduoed in the trial. He was represented by counsel in
the trial court and on the appeal of his ease wherein oertain
questions in no sense involving his alleged insanity were de-
olded adversely to him by the court of Criminal Appeals of
Texaa.
Presumably, also, he made no request for a prior hear-
ing upon hla sanity berora his trial upon the robbery charge;
Be does not at this time in his applloatlon for re-
lease upon a writ of habeas corpus claim that he Is now insane.
It is recognized, of course, that the presumpticn of
sanity which the accused must overcome in a criminal c8se caases
to exist and there arises a presumption of insanity whlichthe
State must overoome upon the showing by the accused of s prior
and unvacated judgment Of insanity against him.
Honorable Reginald Bracewell, Rage 4
“In Texas the rule is that, khere insanity has been
once shown to exist as by judgment 0r the court the pre aump-
%lon is that 1naanity continues and the burden Af proof ia
upon the State to show otherwise, and the jury must be so ln-
formed." Morse v. State, 152 3. II:.
927, 928; Runt v. ;;tats,
26 s. ?J. 206: Yantis v. State, 255 S. VI. 180; Davidson v.
state, 4 s. ;I:.(2d) 74; Kizer v. State, 92 S. X. (26) 439;
young v. State, 46 S. W. (2d) 991; olover v. State, 69 S. ?J.
(2d) 136.
Does this mean, however, that the insanity of the
accused need not be interposed by him upon his trial, such
defense not established, a prior judgment of insanity not in-
troduced in evldenoe, and, nonetheless, a judgment of convlc-
tion rendered againet him in such case would be void because
at some time in the past the defendant had been adjudged ln-
sane? We think not.
In Emerson v. State, 59 S. 2. (26) 117, there was
before the Appellate Court a bill Oomplaining of, generally,
the raot that the appellant was not mentally or physically
able to defend himself properly, and of a refuaal to aontinue
the aase for suoh reason. After pointing out facta warranting
the trial court in refusing the continuance, the court said:
“Examining the court’s oharge in connection with
the other parts of the reaord, we find nothing to lead
us to oonolude that upon the trial of this ease any
plea of insanity wae Interposed. Under the merciful
wovlsiona of our statutes. one cannot be,trfed while
in e oonditlon of snsanity; but in order to avail him-
supposed error In putting him
Ex Farte MoKenzie, 2S S. X. (2d) 133, involved an
original application for a writ of haveas corpus based on an af-
fidavit stating that the applicant ‘~?ainsane at the time of
his trial and oonviction of murder. The court in questioning its
authority over the trial court In suoh matters, declared:
“It is more than -questionableas to whether we
have any authority ov?r any trial court in such mat-
ters. From the recond on file in tPJs court it is
plain that applicant rms ably defended when upon trial
J
Honorable Reginald Bracowell, Page 6
for murder. The situation revealed by said record
indioates aotivlty and participation in the trial by
applioant hb3eir. Said trial was exhaustive. If
there had been any evidenoe of insanity, or desiz to
'interposesuch plea, it appears to ua same should
have been advanced at that tim0.n [Esnphasis ours)
In Young v. State, 46 S. :Y. (2&) 991, 995, the
oourt mid:
%omplaint is made of the fact that the issue
of insanity at the time of the triar was not submitted
to the jury or passed on in any manner. *?le find noth-
ing in the record in any way raising suoh Issue, either
during the trial or antecedent thereto; the latter be-
ing ordinarily the proper time to have instituted such
inquiry, if 8 dsol~lon of same be desired. As far as
we know, appellant was represented by attorneys of his
own ohooslng, and we are Impressed with a belief that,
had affidavit been mad8 prior to this trial setting up
present lnsani~ty,or evidence presented suggesting in-
sanity at the time of trial, a jury would have been
impanefed for the determination of that issue. Ramlrez
v. State, 92 Tsx. Cr. R. 38, 241 S. Y. 1020. Failing
to pursue this oourse, we do not believe the trial
oourt called upon to submit the issue of present in-
sanity here, and certainly he WRB not called on, as
said in Soderman v. State, 97 Tex. cr. P., 30, 260
S.W. 607, upon his own initiative to atop this trial
after it had begun and begin and conduot another. . . .I)
In Sodermsn v, State, 260 S. ?V.607, 611, it was
held:
-During the trial one of the witnesses for the
appellant sxprdssed the opinion that the appellant was
insane at the time. After verdict, for the first time,
appellant, in his motion for a new trial, complains
of the failure of the court to cell another jury and :
have the issue of present insanity tried preliminary
to submitting the issue of appellant's guilt to the jury.
If demand for a separate trial upon the issue Of present
insanity had been made in B timely manner, doubt$hzs the
trial court would have acaorded the privilege.
right of the trial court upon his own initiatiV8, after
the jury had been impaneled and charged with the deliver-
ance of the apl;ellant,to atop the trial and begin
,
Honorable Reginald Bracswell, ?aee 6
another would be open to sarlous question. The
statute8 do not say in terma that the ieaue of
present insanity shall be first tried. Tbls court
has held, however, that where the demand is trade
before the trial begins it should be first tried
ror the obvloua reason that one who la insan might
not be in a position to progerly oonduct hls trial
upon the Issue of guilt or innooenco. Article 39, P.
* Ramirez v. State, 92 Tex. Cr. R. 38, 241 S. ;'r.
kl. Where, as in this case, prosent Insanity la
not Intimated in advenae by the attorneys OondUOting
the trial, or is not at that time apparent to the
aout, the failure or the court to lmpenel e jury-to
determine that Issue preliminary to the trial for
the offense with whioh the accused was charged cannot
be successfully urged after verdict,*
zhlle these oases relate specifically to the question
or the insanity or an aocused person at the time of his trial
upon the criminal charge and his right to a separate sanity
hearing, the principle which they declare is that an accused
person must assert any right arising from his alleged insanity
at the proper time. Insanity 13 not a permanent condition under
the law. Rotwithstanding a perBon*(sadjudicated insanity St a
prior time, the continuanoe of the condition and its existence
at the time of the commission of an offense, or et the time of
trial thereupon, doea not follow as a matter of law -- a pre-
sumption of insanity arises and the burden of proof changes
upon the showing oi a prior end unvacated judgment of insanity.
It was aeid in Klzer v. State, supra. that "in orim-
inal cases where there is in evidence a-valid judgment or in-
sanity aaainst the accused at the time or the commlealon of
the ofre&e charged, the State must prove beyond a reasonable
doubt that at such time the acoueed was sane end the shifting
ot the burden or proof in the instant 0~88 from the State to
the defendant may have been a matter of vital importance to
him." (Emphasis ours)
And again in this case on notion for re-hearing, it
was said:
"This case was approved and followed In Davidson
v. State, 109 Tex. Cr. R. 251, 4 S. X. (26) 74, in
which both in the original opinion and in the opinion
on re-hearing we stressed the proposition that ahen
the proof showed that at some time prior to the com-
Honorable Reginald Bracewell, Page 7
mission of the offense on trial the accused had
been adjudged Insane, and such judgment had never
been set aside or vacated, that the burden of proof
shifted to the State, and it became the duty of the
trial court to instruct the jury that in such case
ths defendant was presumed to be insane until the
State showed beyond a reeeoneble doubt to the con-
trary.” (Emphesie oure)
Each of the foregoing casea, It seems, recognize the
proposition that it is incumbent upon theaccused to establish
the existence of e prior unvacated judgmant of insanity before
and whereby he may take advantage thereor.
It may therefore be said that the defense cf insanity
at the time of the commission of an offense, and it is but a
defense to the charge, ie one which must be asserted by the
defendant upon his trial. Ii he has never boan adjudged Insane,
he must show by a preponderance of the evidence that he wae ln-
sane at the time. If he haa been adjudged insane and such judg-
ment has not been set aside or vacated, the sccused may, by
establishing this judgment before the court, secure to himself
the advantage or the presumption of insanity which the State
must overcome. In either event, hoaever, the defendant must
Interpose his plea of insanity In the required manner; there
is no intimation in the reported cases that he may absolutely
rail to do so and subeequently raise the issue,in a collateral
attack upon the judgment or conviction.
Jioreover,a judgment or convictlon is rea adjudiceta
of the Issues necessarily comprehended in the trial and oonvic-
tion of a person for violating the criminal laws. One 0r these
issues is that or the sanity of the defendant for the obvious
reason that the law declares that one V&IOwas insane at the
time of the commission of an act, otherwise a criminal offense,
may not be punished therefor%
This was clearly stated by the Supreme Court of Me-
slssfppi in kiitchellv. State, 179 Bias. 814, 176 SO. 743, 121
A. L. R. 258, as follows:
"It has long been a settled prinCipl8 of the Com-
mon law that 3 judgment of a court of superior juris-
diction is conclusive by way of res sdjudicata of all
those Issues involved in the record of the original
trial, and which, being so involved, might have been
therein litigated. Yardy v. 5'Pry, 102 Xiss. 197, ?,l&,
Honorable Regihald Bracewell, Page E
59 so, 73. ;nd especially is this true when as to
a particular issue it was neoessary for the court
and jury to have deoided that issue in order to
warrant the verdict and judgment xhlch were rendered.
In order to warrant the rendition of a vardict and
judgmentfof crime it is necessary that the judgment
shsll comprehend the iaaue that the accueed, both at
the time of the commission OS the offanse and at the
time of trial, was ot sufficient mental soundnese to
be held to criminal acoountabilitg and to be subject
to a trial therefor, with the result that when a ver-
dict oi guilt and a judgment of condemnation have been
returned and:anterad that action is res adjudicata of
both the issues ment ioned."
The elementary prinoiple, embodied in Artiale 34 of
the Penal Code, that an insane person may not be put to trial
for hla life or liberty on a criminal charge if he is at the
time insane, or be punished for an az.tii ha was insane at the
time ot its commisslsn, 13 not violated in holding that it 1%
incumbent on the aacused to assert such defense upon his trial.
As before pointed out, the plea of **notguilty” authorizes the
introduction of avidonoe by the defendant on the question of
his insanity. If he does not avail himseli of such deiense by
making the requisite proof thereof, he may not subsequently,
in a collateral proceeding, successiully attack the judgment
of oonviction against him on the basis of his alleged insanity
at the time o? the trial or the commission of the offenee.
A moment*s refleotion will reveal the neoeseity and
propriety oi this rule. ?:ereit otherwise, a defendant oould
forego the defenee o? ineanity in the trial of the criminal
oherge, take his chances upon a succsssful defense in other
particulars, and, it unsuccessful, thereafter In a collateral
proceeding attack the judgment ci conviction as void because
of the exlstenoe of'extraneous faots.
Furthermore, if an outstanding judgment of insanity
against the accused would render a judgment of convlotion void,
although not established in ovidenae, the rule of the presump-
tion of sanity of the defendant would, in effect, be abrogated.
@Ihestate would be compelled in evary case, as a matter of pre-
caution, to establish the sanity of the defendant beyond a
reasonable doubt lest there be In existence somawhere an unva-
cated judgment of insanity of :*rtiich
it h;ldno knowledge and,
as a practical uotter, In the exercise OP diligence could not
Ifonorable3eFinnld lraoewell, ?a$8 3
bare :rlad
knowled~s.
;'lnally,W! rote the case 21 tlgera,v. m3nlligen,
344 Fed. 42.0, i. ii.A. lQlUi%,3. FO, by tFa Xlnth Circuit
Gout. whioh hoAct%that habeas cor,pueis not 3 proper remedy
to socure the releeas of :: person aonvloted 3r a orina mhlls
at large c.ltr,r?lr esceps from an Insane eeylu~, but that
the rnmdy, if any, ir by appeel. The ap~lloatlon of the
principle thus aeohred to the oeae before u% agp%%c% in th%
PollowLng :;uor;ationfrom r,heo~inima of the oourt:
,',dverti~to the i;ussticn at ?mnd, ?t ir, therefore,
the opinion or this fapnrtmont t.kttthe judgzant ot the Ois-
triat co:!rtcY x.1 i'aacCounty 2onvLctLcg ~:rfpg% br robbery
and eaeesnia(J $1~ gunfsb``nt tharai'cr,r:Sio!~ .wti afrirmsd by
the Court or Criminal appeala of ?'esx%,is not void 1x1Virtue,
only I of a prior unvaoated JuJ~mnt of inmnitp aFeln8t l?riage
which s/rue t3t befo,rethe court in the trtzl of the criuilnel
ease. ,;acordir#lp.it in our opinion tihant the described ap-
~llcsticn of t. ;/.3ri;;gs:‘*ir L-i:raleooe frcm :xison upn e
writ of hbea:: cxv?us, ;':lad in the ,Xstrlct ;:c;urt OS 3ilisr
“,ountp, Texm, should be refuoed.
~B t3~p22:f::
DO nplnix z:>onrte uctl.3 3r f3e 3lstrlct
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