PAUL DAVID MILNE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed February 20, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01691-CR
............................
PAUL DAVID MILNE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F03-58699-N
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MEMORANDUM OPINION
Before Justices Morris, Lang, and Lang-Miers
Opinion By Justice Lang-Miers
        A jury convicted Paul David Milne of murder and found he used a deadly weapon during the commission of the offense. It assessed punishment at life in prison and a $10,000 fine. In two issues, appellant argues the evidence is factually insufficient to support the jury's implicit rejection of his insanity defense, and the trial court erred by overruling his objection to the prosecutor's jury argument. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
 
Insanity Defense
 
        Appellant's first issue asserts the evidence is factually insufficient to support the jury's implicit rejection of his insanity defense.
Background
 
        Late in the evening on December 20, 2003, in the driveway outside his parent's home, appellant brutally stabbed and murdered 19-year-old Mayra Deloa, his former girlfriend. Appellant's sister heard Mayra's screams and awakened their father, Rich Milne. Rich Milne ran to the driveway and grabbed appellant by the throat to keep him from stabbing Mayra again. As Rich Milne held appellant, appellant's “whole body just relaxed,” and he said, “it's all over now.” Appellant told him, “dad, I'm not resisting.” And he said, “I'm sorry, dad.” Appellant prayed that Mayra would not die. When the police arrived and placed appellant in custody, appellant said, “I'm not resisting.” About two or three hours later, appellant told police:
 
        Mayra and I went back to my house. Mayra drove her Volkwagon Jetta gray. We parked out in front of the house, got out the car and set on the front porch. We didn't say very much to each other. I said goodbye. At that point the voices in my head just yelled and screamed “she has to die” “she has to pay.” That's when I took the pocket knife out my pant pocket. I grabbed Mayra around her neck with my arm. I started stabbing her with the knife. I was watching. I was watching my hand stabbing her. It was like my mind wasn't connected to my body. The voices were yelling, laughing and screaming. Mayra and I were between the white Cadillac and my car white firebird in the driveway. Mayra tried to resist. I just over power her. She tried to fight my body was strong. I don't remember very much after the scream until my dad grabbed me. That's when the screams stopped and the voices were quiet. My dad had me on the ground. He had come up and pulled me off Mayra. After that I dropped the knife, and asking my father to kill me. The knife is mine. It was a benchmade knife. It was black carbon fiber.
 
        At trial, appellant claimed he was legally insane at the time of the murder.
Standard of Review and Applicable Law
 
        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. Pen. Code Ann. § 8.01(a) (Vernon Supp. 2006). The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Id. § 8.01(b). A defendant must prove an affirmative defense by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46C.153(a)(2) (Vernon 2006). In examining the sufficiency of the evidence to support a jury's rejection of an insanity defense, we review all of the evidence relevant to the issue to determine whether the judgment is so against the great weight and preponderance of the evidence that it is manifestly unjust. Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App. 1994); Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990).
        Whether a person is medically insane does not necessarily determine whether that person is also legally insane within the meaning of section 8.01. And evidence of a mental disease alone is not sufficient to establish legal insanity unless the accused was mentally ill to the point that he did not know his conduct was wrong. Plough v. State, 725 S.W.2d 494, 500 (Tex. App.-Corpus Christi 1987, no pet.). The insanity defense issue determines whether an accused should be held responsible for the crime or excused for his conduct. Graham v. State, 566 S.W.2d 941, 948 (Tex. Crim. App. 1978). Ultimately, the determination of this issue lies within the province of the jury, not only as to the credibility of the witnesses and weight of the evidence, but also as to the limits of the defense itself. Bigby, 892 S.W.2d at 878; Graham, 566 S.W.2d at 952; see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).
        Because the circumstances of a crime are always important in determining the mental state of the accused at the time of the offense, the trier of fact may consider such evidence as the appellant's demeanor before and after the offense, attempts to evade police, attempts to conceal incriminating evidence, expressions of regret or fear of the consequences of his action, other possible motives for the offense, and other explanations for his behavior. See Graham, 566 S.W.2d at 951; Torres v. State, 976 S.W.2d 345, 347-48 (Tex. App.-Corpus Christi 1998, no pet.). Additionally, because the insanity issue is not strictly medical, expert witnesses, although capable of giving testimony that may aid the jury in its determination of the ultimate issue, do not dictate determination of that issue. Only the jury can connect the medical and non-medical components that must be considered in deciding the ultimate issue of criminal responsibility. Graham, 566 S.W.2d at 949.
Analysis
 
        Appellant offered extensive testimony from two defense experts about his mental state at the time of the offense. The experts, a psychologist and a licensed professional counselor, diagnosed appellant with dissociative disorder.   See Footnote 1  They concluded appellant exhibited symptoms of dissociative disorder at the time of the offense and did not know his conduct was wrong.
        But the defense experts also testified appellant was “faking bad.” Both experts testified appellant, consciously or unconsciously, was trying to appear more ill than he is. The psychologist testified appellant was, at best, exaggerating on the tests he administered and, at worst, lying. He said he was sixty to sixty-five percent certain appellant suffered from dissociative symptoms on the night of the murder. But he said he could not be more certain because appellant “has shown a willingness to tell lies to suit his best needs.”
        The State offered the expert testimony of two psychiatrists who examined appellant and determined he was legally sane at the time of the offense. These opinions were buttressed by appellant's apparent awareness, in their opinion, of the wrongfulness of his conduct: he told his father and the police that he was “not resisting.” And his father said that, as he held appellant waiting for police to arrive, appellant said he was sorry and prayed that Mayra would not die. Appellant also thanked his cousin earlier that day for the “heads up” back in November before they called the police to report his threat against Mayra. He said it gave him time to hire a lawyer to “take care of the police.” And appellant gave a statement to the police approximately two hours after the murder describing in detail what he did. It was only later appellant claimed he could not remember what happened.
        One of the State's psychiatrists diagnosed appellant with antisocial and narcissistic traits and testified she did not see any evidence appellant suffered from a dissociative disorder. She also testified appellant told her he had not heard the voices while in jail, even though he was not taking his medication as prescribed.
        The jury also heard the testimony of a physician's assistant who treats appellant in the jail. She said appellant's behavior in jail has been very appropriate, very sociable, and articulate, and she has not observed him having auditory hallucinations. Appellant told her he does not take his medications because they make him feel “dumbed down.” She testified people who take medications they do not need often will feel “fuzzy-headed.” She also testified appellant has been housed in a single cell in the psyche ward for over a year. When she has asked him if he would like to be moved to the general population in the jail, he has refused. She testified seriously mentally ill inmates “do very poorly” in single cell conditions, but appellant prefers it.
        Wyatt Figueroa, appellant's cousin, testified he spent two to three hours with appellant on the day of the murder and that he seemed different. He said appellant appeared to have “side conversations with somebody who wasn't there.” But he did not tell the police this when he gave his statement in early January 2004. When asked why, he said it irritated him that he had not remembered to tell them about the voices appellant appeared to be hearing on the day of the murder.
        The defense also offered extensive testimony about appellant's history of depression, suicide attempts, and his troubled relationship with a previous girlfriend. At age eight, appellant was diagnosed with severe learning disabilities and ADHD. He began taking medication and continued to take it until he was eighteen, when he chose to stop taking the medication because it did not help him. At age ten, appellant told his parents he heard voices telling him they were not his real parents. He was depressed much of the time at this age, and his medication was changed. At age thirteen, his parents became concerned that appellant might try to commit suicide and began looking for a counselor. At age fifteen, appellant said the voices were still talking to him. He started dating a girl named Tiffany around this time. They tried to commit suicide together, and the evidence showed appellant planned to kill Tiffany's entire family, but did not carry out the plan. Around this same time, appellant began having violent rages when he became angry and was hospitalized twice for severe depression. After his break-up with Tiffany, appellant got a job at Kroger. He held that job for over two years and even won “employee of the month,” but quit after being assigned to a task that overwhelmed him.
        In the summer of 2003, appellant began dating Mayra, whom he met at Half Price Books where they both worked. According to Wyatt, appellant became obsessed with her. But that fall, Mayra moved to Lubbock to attend college, and there she met another man. She told appellant she was unsure whether she wanted to continue her relationship with him. Appellant decided he would confront her about the other man. In November 2003, about a month before the murder, appellant told Wyatt that he planned to confront Mayra and if he did not like her answer, he was going to stab her to death. He showed Wyatt a knife he had purchased for that purpose. He told Wyatt he had researched where to stab her to make her bleed faster. He also told Wyatt how he planned to roll her up in a tarp, along with his bloody clothes, and set the whole thing on fire. He purchased a tarp and a gas can. A month later, when Mayra was home for Christmas break, they met and Mayra ended the relationship. As she got up to leave, appellant stabbed her nineteen times. He said the voices told him to do it. The professional counselor testified appellant planned the murder, not one of the voices, but the voices took over and carried it out.
        The State also offered letters appellant wrote to his parents while he was in jail awaiting trial. In one of those letters, he told his parents to consider a home equity loan with a low interest rate to help with his defense costs and to think of it “as the coll[e]ge education I never got.” He told them he was selling his prized possession, his Firebird, so they could part with a few trinkets and do-dads to help him. He told his mother she failed him as a parent and Mayra paid the price for it. In another letter, appellant asked his mother to talk to Wyatt about his testimony. He said it was not “tampering” if she did not threaten him. He asked her to tell Wyatt that “his statement stands between me and help which is all I want.” In another letter, he told his mother, “Talk to Wyatt. Help him understand what he could do to me to destroy everything.” And in another letter, he described the voices and visions he has had and said, “Jerry needs to see this. I hope it helps me and my case.” Jerry is the licensed professional counselor who testified appellant was legally insane. But he also testified this letter was “manipulative” because appellant was trying to appear more ill than he was.
        After a neutral review of the relevant evidence, we conclude the jury's implicit rejection of the insanity defense was not so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz, 785 S.W.2d at 155. We resolve appellant's first issue against him.
 
Improper Jury Argument
 
        In his second issue, appellant argues the trial court erred by overruling his objection to the following jury argument by the prosecutor:
 
        And I will tell you that I think it was around Tuesday morning that we delved into the most important part of this case, and that was the fact that a 19-year-old girl was brutally stabbed to death for no reason other than she wanted to be a carefree college girl. And this defendant here decided that if I can't have her, nobody will. That's what this entire case is about. And I'm afraid we lost sight of that around Wednesday, Thursday, Friday, and particularly again this morning.
 
        Appellant objected to this argument, contending it attacked the defendant over the shoulders of counsel. The court overruled the objection.
Standard of Review and Applicable Law
 
        Proper jury argument must encompass one of four general areas: summation of the evidence, reasonable deduction from the evidence, answer to opposing counsel's argument, or plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). To determine whether a party's argument properly falls within one of these categories, we consider the argument in light of the record. See id. at 154-55. The State may not use closing argument to strike at a defendant over the shoulders of his counsel. Fuentes v. State, 664 S.W.2d 333, 335 (Tex. Crim. App. 1984). A prosecutor runs this risk when the argument attacks defense counsel personally or when it explicitly impugns defense counsel's character. Id. But it is not improper for a prosecutor to attack defense counsel's argument. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Analysis
 
        The State did not refer to defense counsel personally in this argument. And the record shows that, immediately after appellant objected to the argument, the prosecutor told the jury to “[k]eep that in mind, folks, what we're here about. This defendant is clearly guilty of murder, and as you know, there [are] a few legal justifications for murder.” The prosecutor argued self-defense did not apply, so appellant “will take a shot at the one and only legal justification he has left available to him, and that is insanity.”
        Appellant argues the record shows the State rested its case in chief on Tuesday, the defense presented evidence on the insanity issue Wednesday and Thursday, the State presented its rebuttal evidence on the insanity issue on Friday, and the defense presented its rebuttal evidence on Monday. He contends the argument “specifically refers to defense counsel's presentation of his case and implies that his presentation caused the jury to lose sight of what the entire case was about-Mayra's death.” He contends “the argument implies that defense counsel acted inappropriately.” We disagree.
        Viewed in the context of the argument, we conclude the prosecutor did not attack defense counsel personally or imply that defense counsel acted inappropriately. Instead, we conclude the argument was an answer to appellant's claim that he was legally insane at the time of the murder.         We conclude the prosecutor's jury argument was not improper. We resolve appellant's second issue against him.
 
Conclusion
 
        We overrule appellant's first and second issues. We affirm the trial court's judgment.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051691f.u05
 
Footnote 1 The experts explained that a person who experiences a severe trauma, such as physical or sexual assault, develops a mechanism to cope with the trauma. There are five categories of dissociative disorder: dissociative identity disorder (formerly known as multiple personality disorder), depersonalization (having the feeling your body does not belong to you); derealization (having the feeling other people and objects around them are not real); identity confusion (the person does not know who they really are); and identity alteration (the person acts and thinks differently and does things they would not normally do). According to the defense experts, appellant did not fit neatly into any of these categories, so his diagnosis was “dissociative disorder not otherwise specified.”