BRENT DOUGLAS STEPHENS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued March 11, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01557-CR
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BRENT DOUGLAS STEPHENS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-55369-R
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OPINION
Before Justices Morris, FitzGerald, and Lang-Miers
Opinion By Justice FitzGerald
        Brent Douglas Stephens appeals his conviction for the murder of his ex-wife. After finding appellant guilty, the jury assessed his punishment at life imprisonment. Appellant brings three issues asserting the evidence is legally and factually insufficient to support the jury's implied rejection of his insanity defense, and the prosecutor's jury argument regarding appellant's academic training in psychiatry constituted reversible error. We affirm the trial court's judgment.
BACKGROUND
        Appellant testified he and the complainant were married in 1995. During the marriage, appellant suffered from depression, and he used methamphetamine. He checked himself into a hospital to treat his drug abuse, and while there he was diagnosed with bipolar disorder.         In 2005, appellant accused the complainant of being unfaithful. They separated, and the complainant told appellant she wanted a divorce. Appellant testified he then began hearing a voice telling him to kill the complainant and himself. Appellant tried to kill himself by slashing his right wrist, and he was admitted to a psychiatric hospital. Appellant testified he did not tell any of the doctors about hearing the voice because the voice told him not to tell anyone. The medical records from that hospitalization show appellant repeatedly denied having auditory hallucinations.
        After they separated, appellant and the complainant lived in the same neighborhood. Appellant admitted harassing the complainant, including sending her abusive text messages, slashing the tires of her car on multiple occasions, ramming her car with his vehicle, and breaking into her house to steal her telephone bill to learn who she was dating. Appellant pleaded guilty to these offenses and was placed on probation.
        Appellant testified he lost his job and his health insurance in January 2008. His psychiatrist refused to see him since he had no insurance, and appellant could not afford his prescription medicines. The voice continued to tell him to kill the complainant. In the months before May 12, 2008, appellant imagined killing the complainant using a gun, a baseball bat, and strangulation.
        Appellant testified that on May 12, 2008, he decided to kill the complainant. At about 6:00 a.m., he took an aluminum baseball bat and drove to the office building where the complainant worked. Appellant hid the bat in his pants and stood on a balcony affording a good view of the atrium through which the complainant would have to pass. At about 8:30 a.m., the complainant entered the atrium. When the complainant came around a corner, appellant beat her with the bat. Witnesses heard the complainant's screams for help. One witness approached appellant as he was beating the complainant and told him to stop, but appellant threatened her with the bat, and she ran back to her office. When the complainant was no longer moving, appellant stopped beating her, and he walked down the stairs holding the bat in front of him. Witnesses passing appellant as he left the scene stated he made eye contact with them. Witnesses who saw appellant as he walked toward his vehicle described him as appearing to try to hide the bat.
        Appellant testified he drove to a friend's house, told him he had killed his wife, and that he was going to kill himself. Appellant then drove to a freeway overpass and sat on the edge of the overpass. Appellant did not jump because he was afraid of heights. The police arrived, the officers talked appellant into moving away from edge, and they then arrested appellant.
        At the police station, a detective questioned appellant about his attack on the complainant. The interview was video recorded without appellant being told, and the recording was played for the jury. In the interview, appellant explained to the detective that for two years, a voice had been constantly telling him to kill the complainant and sometimes also to kill himself. He told the detective he was still hearing the voice and that it was congratulating him for killing her. At one point during the interrogation, the detective left appellant alone in the room, and appellant said, “Shut up. Gonna make me. I did it. Now go away.”
        Appellant testified that, while he was beating the complainant, he did not know that was wrong. He stated he did not realize what he did was wrong until part way through the interrogation with the detective. Appellant also testified he did not know the interrogation was being recorded. Appellant was placed in jail and provided with medications. The medical notes from the jail state that before May 21, 2008, appellant was hearing voices telling him to kill himself. The medical notes for May 21, 2008 state appellant said, “I do not hear voices anymore.”
        At trial, appellant pleaded that he was not guilty by reason of insanity. Neither the State nor the defense presented any expert testimony concerning appellant's mental state. The jury found appellant guilty of murder.
SUFFICIENCY OF THE EVIDENCE
        In his first and second issues, appellant contends the evidence is legally and factually insufficient to support the jury's rejection of his affirmative defense of insanity. The penal code provides, “It is an affirmative defense to prosecution that at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Tex. Penal Code Ann. § 8.01(a) (Vernon 2003). Appellant had the burden to prove this affirmative defense by a preponderance of the evidence. Id. § 2.04(d).
        When reviewing a factual issue on which the defendant had the burden of proof by a preponderance of the evidence at trial, “the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.” Ex parte Schuessler, 846 S.W.2d 850, 852 (Tex. Crim. App. 1993) (emphasis omitted) (quoting Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990)). The jury determines the credibility of the witnesses and the weight of the evidence. Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994). There is no legal sufficiency review of an insanity defense. See Ex parte Schuessler, 846 S.W.2d at 155.
        The court of criminal appeals has described the issues in the insanity defense as follows:
 
Texas law, like that of all American jurisdictions, presumes that a criminal defendant is sane and that he intends the natural consequences of his acts. Texas law, like that of many American jurisdictions, excuses a defendant from criminal responsibility if he proves, by a preponderance of the evidence, the affirmative defense of insanity. This defense excuses the person from criminal responsibility even though the State has proven every element of the offense, including the mens rea, beyond a reasonable doubt. The test for determining insanity is whether, at the time of the conduct charged, the defendant-as a result of a severe mental disease or defect-did not know that his conduct was “wrong.” Under Texas law, “wrong” in this context means “illegal.” Thus, the question for deciding insanity is this: Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?
 
Ruffin v. State, 270 S.W.3d 586, 591-92 (Tex. Crim. App. 2008) (footnotes omitted).
        Appellant asserts his lack of knowledge of the wrongfulness of his actions was shown by the evidence that he heard a voice telling him to kill the complainant, that he killed the complainant in broad daylight outside her office, that he did not try to hide the bat when he encountered people on the stairs as he left the building, that he made eye contact with people as he left the scene and did not try to hide his face, and that he testified he did not know killing the complainant was wrong while he was beating her. However, other circumstantial evidence shows appellant was aware of the wrongfulness of his actions. He hid the baseball bat from view while waiting for the complainant to arrive, and he attempted to hide the bat after he left the building. Furthermore, appellant did not testify the voice told him killing the complainant was legally justifiable. The jury, as the judge of the credibility of the witnesses, was entitled to disbelieve appellant's testimony that he heard a voice telling him to kill the complainant; appellant's credibility about the voice is suspect considering he never mentioned it when he was hospitalized following his suicide attempt and never mentioned it before he killed the complainant. Furthermore, the jury was entitled to conclude from the evidence that, even if appellant was hearing a voice telling him to kill the complainant, he knew killing her was against the law and therefore “wrong.”
        After reviewing all the evidence, we conclude the jury's rejection of appellant's insanity defense was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, the evidence is sufficient to support his conviction. We overrule appellant's first and second issues.
JURY ARGUMENT
        In his third issue, appellant contends the trial court erred by overruling appellant's objection to the State's jury argument.         Appellant testified that while he was in college, he took courses in psychology. During the State's closing jury argument at the guilt phase of the trial, the prosecutor stated:
 
And he gets in his car and he drives off and obeys the traffic laws, because he can't be stopped yet, and his mind is racing, mind's racing. “Did it. I got caught. She put up a fight. It took longer than I expected. What am I going to do now?”
 
 
 
He begins to think about how he's going to save Brent. So he goes to that bridge and he sits up there. And he didn't mean it. It's too scary to jump. And this man who started his degree in psychiatry starts to run through all of the reasons why.
 
 
 
[Defense Counsel]: That's a misstatement, Judge, we object.
 
 
 
The Court: Overruled.
 
(Emphasis added.) Appellant asserts the prosecutor's use of the word “psychiatry” instead of “psychology” was reversible error.
        The proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) response or answer to argument advanced by opposing counsel; and (4) pleas for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Error exists when facts not supported by the record are included in the argument, but that error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. Id.
        In this case, the prosecutor inserted an incorrect statement of fact. Thus, the trial court erred by overruling appellant's objection to the prosecutor's misstatement. For nonconstitutional error, such as that in this case, the error must be disregarded unless it affected appellant's substantial rights. Tex. R. App. P. 44.2(b); Brown, 270 S.W.3d at 572. To determine whether appellant's substantial rights were affected, we balance the severity of the misconduct, any curative measures, and the certainty of conviction absent the misconduct. Brown, 270 S.W.3d at 572-73.
        In this case the severity of the misconduct was low. The prosecutor simply misspoke, using the word “psychiatry” instead of “psychology.” The misstatement was one part of the argument that appellant had fabricated hearing a voice telling him to kill the complainant. The prosecutor did not repeat the mistake, and she did not mention either psychiatry or psychology in the remainder of the argument. The trial court took no curative measures but overruled the objection. Finally, the certainty of appellant's conviction was high. Appellant never told any of the health care professionals who treated him between the marital separation and the murder about hearing a voice, even though the voice had supposedly been constantly telling him to kill his wife. Appellant presented no evidence that a person with appellant's mental disease or defect would have auditory hallucinations or could believe that beating his ex-wife to death was not illegal. Furthermore, appellant's actions of hiding the bat while waiting for the complainant and while walking to his vehicle tended to show he knew beating the complainant to death was illegal and therefore wrong.
        After considering the jury argument in light of the entire record, we conclude the prosecutor's misstatement did not affect appellant's substantial rights, and the argument was neither extreme nor manifestly improper. Accordingly, the error is not reversible. We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081557F.U05