REX J. STOCKTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed November 27, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01501-CR
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REX J. STOCKTON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F88-84484-HN
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OPINION PER CURIAM
Before Chief Justice Enoch and Justices Stewart and Kinkeade
        Rex J. Stockton was convicted by a jury of the offense of burglary of a vehicle. Punishment, enhanced by two prior convictions, was assessed at seventy-five years' confinement. Appellant claims that the evidence is insufficient to convince a rational trier of fact that appellant failed to prove the affirmative defense of insanity. We affirm the judgment of the trial court.
        Robert Richardson, a security guard, testified that on July 5, 1988, he was on duty in the parking lot of the Debonair Danceland when he saw an individual standing beside an old car, looking around; the car was running. The individual had liquor on his breath, but did not appear intoxicated. He identified appellant as the individual. Appellant told him he was waiting for a lady at the adult theatre next door; he left his car running because he was afraid he wouldn't be able to start it again if he stopped it. Appellant then attempted to move the car to a spot nearer the theatre; during this attempt, the engine died. Richardson helped appellant push the car into a parking space, then attempted to obtain assistance to restart the car. While he was looking in the back seat for a set of jumper cables, he found a tool pouch laying on the seat, and tools scattered on the seat. After trying without success to start the car, Richardson told appellant that he thought something was wrong with the car and asked him if there was anyone he could call. Appellant replied that his brother had been with him, but he didn't know where he had gone.
        Meanwhile, a patron of Debonair Danceland approached Richardson and asked him if he had seen anyone in the parking lot with some carpenter tools in a tool pouch. Richardson took him to the car driven by appellant; the man identified the tools in the back seat as his. Appellant returned to the car, saying, "What are y'all doing around my car?" Richardson returned to Debonair Danceland to obtain assistance. When he emerged, appellant was walking away from the car. Richardson and two other security guards stopped appellant. After Richardson placed him in handcuffs, appellant began wiggling his wrists trying to get out of the cuffs and wobbling around. Appellant then gave conflicting answers when asked what his name was; he first replied, "Rex Stockton," then "John Doe." When police arrived, he blew his breath in an officer's face, saying, "I got the AIDS." Richardson testified that he had no trouble following appellant's conversation and that appellant appeared to have no trouble understanding everything he was told. He also said that appellant behaved normally until he was prevented from leaving.
        Jose Tellez, the complainant, testified that on July 5, 1988, he was at the Debonair Danceland with his 1984 Bronco II. When he came out of the club, the windows were broken in his car and his tools were missing. He asked the security guard if he had seen anyone in the parking lot with tools. The security guard took him to a car with tools in the back seat; the complainant identified the tools as his. Appellant then approached the car. The complainant testified that he was with appellant for approximately forty minutes. During that time, appellant acted as if he had been drinking.
        Clifford Norfleet, a Dallas police officer, testified that on July 5, 1988, he responded to a call from the Debonair Danceland. When he arrived, he found appellant in handcuffs. He characterized appellant as uncooperative. He also testified that he has had occasion to handle both intoxicated persons and mentally ill persons before. Based on his observations of appellant, he concluded that appellant was intoxicated; he did not appear to be mentally ill.
        Appellant called two witnesses to testify on his behalf in his case-in-chief. Pauline Williams, appellant's sister, testified that appellant had lived with her over most of the past ten years. He receives disability payments for heart disease, high blood pressure, and "mental problems". He has been treated by a psychiatrist for his mental problems for the past five years; he goes to the doctor once a month and receives Thorazine. She testified that her brother goes through periods in which he has both visual and auditory hallucinations, does not know her or her children, and becomes aggressive. She also said that her brother drinks heavily. She testified that she receives his disability checks, pays his bills, and gives him money to live on. Approximately one month before he was arrested, appellant moved out of her house and into an apartment. On July 3, 1988, she was contacted by the people at Parkland Hospital concerning her brother. An appointment was made for him to go to his psychiatrist on July 5. Her brother did not make it to the appointment. On cross-examination, she denied that her brother had a drinking problem. She testified that she had never had problems with him stealing things; she also said that her brother did not have either a driver's license or a car.
        Dr. Fernando Siles, appellant's psychiatrist, testified that he began working with appellant in the fall of 1986 on appellant's release from prison. He diagnosed appellant as suffering from schizoaeffective disorder. He characterized the disorder as a severe mental disorder. Appellant takes Thorazine for treatment of his problem. Appellant was first diagnosed in 1962. The doctor reviewed appellant's records, as well as the records from Parkland Hospital, and concluded that on July 5, 1988, appellant was suffering from a psychotic episode. He reviewed the records of the psychiatrist at Parkland Hospital on July 3, 1988. The doctor had diagnosed appellant as suffering from alcohol withdrawals; Dr. Siles characterized this as a misdiagnosis. In addition, Dr. Siles testified that appellant most likely did not know that his conduct on July 5 was wrong. On cross-examination, he testified that the reports conducted by caseworkers who had worked with appellant for an extended period of time characterized appellant as oriented, his thought processes as directed. He also testified that it is relatively rare for people with appellant's disorder to break the law.
        On rebuttal, the State called Dr. James Grigson. He testified that he performed a complete psychiatric examination of appellant. He was aware of appellant's psychiatric history. He concluded that appellant was faking his psychosis, and that appellant was sane at the time of the offense. He also said that he agreed with the examination conducted by Dr. Clay Griffith on appellant, and that he agreed with the diagnosis.
        Appellant's final witness was Lawrence Jackson, the "tank spokesman" for the portion of the jail in which appellant was located. He testified that appellant has been on medication since he arrived in jail. He has to tell appellant when to bathe, change his clothes, and change his bed. He also has to keep track of appellant's money. Appellant talks to "people that aren't there". Appellant has also urinated on fellow prisoners, even though he has a toilet nearby. On cross-examination, Jackson testified that appellant had not been placed in one of the cells for inmates with mental problems.
        Section 8.01(a) of the Texas Penal Code provides as follows:
        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 Supp. 1989). Since insanity is defined as an affirmative defense, the accused must carry the burden of proof by a preponderance of the evidence. Graham v. State, 566 S.W.2d 941, 943 (Tex. Crim. App. 1978); Tex. Penal Code Ann. § 2.04(d) (Vernon 1974). In reviewing the evidence on the affirmative defense, we must review the evidence by looking at the evidence in the light most favorable to the implicit finding by the jury with respect to the affirmative defense, and then determine, by examining all the evidence concerning the affirmative defense, if any rational trier of fact could have found that appellant failed to prove his defense by a preponderance of the evidence. Van Guilder v. State, 709 S.W.2d 178, 181 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1169 (1986). Determination of the issue of insanity at the time of the offense lies ultimately in the province of the jury, both as to the credibility of the witnesses and the weight to be given their testimony. Graham v. State, 566 S.W.2d at 952.
        In the present cause, conflicting expert testimony was presented on appellant's disorder. Appellant's psychiatrist testified that he suffered from a psychoaeffective disorder, and that in his opinion, appellant was suffering from a psychotic episode. Proof of a mental defect alone is not sufficient to establish the affirmative defense of insanity. Schuessler v. State, 719 S.W.2d 320, 329 (Tex. Crim. App. 1986). He also testified that in his opinion, appellant did not know when he broke into the complainant's truck that what he was doing was wrong. However, he also testified that it is rare for people with appellant's disorder to break the law. He also conceded that a diagnosis of another psychiatrist who saw appellant near the time of the offense differed from his diagnosis. The State's expert testified that appellant was faking his disorder, and that appellant knew what he was doing at the time of the offense. In addition, conflicting evidence was introduced from lay witnesses. Appellant's sister testified that appellant had been disabled due to heart problems, high blood pressure and mental problems. She also testified to appellant's hallucinations. However, she testified that appellant had moved out of her home before the offense, and was living on his own. Appellant's "tank spokesman" testified to appellant's behavior since the time he was brought to jail. However, the security guard who was with appellant near the time of the offense testified that appellant's behavior was not unusual until after he had been placed under arrest. In short, appellant's disorder was characterized as episodic; the testimony was conflicting as to whether, at the time of the offense, appellant was suffering from a psychotic episode, and if so, whether he knew what he was doing was wrong. Given the conflicting nature of the testimony, we defer to the jury's resolution of this issue. See Schuessler, 719 S.W.2d at 329. Appellant's point of error is overruled and the judgment of the trial court is affirmed.
                                                          PER CURIAM
 
DO NOT PUBLISH
Tex. R. App. P. 90.
 
881501PF.U05
 
 
File Date[12-04-89]
File Name[881501PF]