Gary Boddie v. State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-00-00422-CR
Gary BODDIE,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CR-1401
Honorable Philip A. Kazen Jr., Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 30, 2001

AFFIRMED

Appellant, Gary Boddie raised an insanity defense at trial and was subsequently found guilty. On appeal Boddie challenges the factual sufficiency of his conviction. We find the evidence was factually sufficient and affirm Boddie's conviction.

Background

On the evening of February 3, 1999, Boddie telephoned Williams and left a threatening message on her answering machine stating that "he was going to take her out and everything else." Approximately thirty minutes later, Boddie arrived at Williams' home and drove his pick-up truck through the front window of her home. Boddie then entered the house and destroyed numerous items in various rooms of her house. Williams, awaking to the sound of smashing glass and metal and being in imminent fear for her life, called 911. The 911 operator instructed Williams to find a place to hide and assured her that police officers would be there shortly. During Boddie's rampage, Williams hid in her bedroom closet and remained there until the police later discovered her unharmed.

Upon arriving at the Williams home, the police officers loudly identified themselves and began calling out for her. After locating Williams and escorting her to the safety of neighbors, the police officers began to search for Boddie. In attempting to flee the scene, Boddie broke through a glass patio door, injuring himself. Following Boddie's blood trail, the police officers were able to locate him standing in front of a house down the street from the Williams home. EMS attended Boddie's injuries at the scene, then transported him to the hospital for further medical attention where he was placed under arrest.

Boddie was subsequently charged with the offense of burglary of a habitation with intent to commit aggravated assault and with criminal mischief in the amount of $1500-20,000. Boddie entered a plea of not guilty by reason of insanity. The case was tried to a jury which returned a verdict of guilty and assessed punishment at fifty-five years imprisonment and a fine of $10,000. Boddie has appealed his conviction, claiming in his sole point of error that the judgment is so against the great weight and preponderance of the evidence that it is manifestly unjust.

Standard of Review The standard of review for a factual sufficiency challenge regarding the elements of the offense requires that the courts of appeals examine all of the evidence impartially, and set aside the jury verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). When reviewing the factual sufficiency of evidence concerning an affirmative defense, however, we consider all the evidence relevant to the issue at hand to determine whether the judgment is so against the great weight and preponderance of the evidence that it is manifestly unjust. Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).

The Insanity Defense
Boddie claims he should have been acquitted because he was insane at the time the offense was committed. 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 his conduct was wrong. Tex. Pen. Code Ann. 8.01(a) (Vernon 1994). Boddie bears the burden of proof and the burden of persuasion. See Meraz, 785 S.W.2d at 150. Insanity must be proven by a preponderance of the evidence. See id. By pleading the affirmative defense of insanity Boddie has acknowledged that he committed illegal conduct, but that he should not be held criminally responsible for that illegal conduct. See id. at 153. As it is the defendant's burden to establish the insanity defense and persuade the jury that he should not be held criminally responsible for his illegal conduct, he is permitted to put forward expert and lay testimony regarding the existence and severity of his mental disease or defect. The trier of fact then must determine "whether a greater amount of credible evidence supports one side of the issue than the other." Meraz, 785 S.W.2d at 156, quoting Tibbs v. Florida, 457 U.S. 31 (1982). And in making the ultimate determination of guilt or innocence, the fact finder is the sole judge of the weight and credibility given to witness testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

Boddie urges this Court to apply the Meraz factual sufficiency standard when reviewing the jury's verdict in order to determine whether the judgment is so against the great weight and preponderance of the evidence that it is manifestly unjust. Meraz, 785 S.W.2d at 155. This standard is properly utilized when an Appellant, for example, had the burden of proving his affirmative defense by a preponderance of the evidence, and on appeal he hopes to demonstrate that the state of the evidence preponderates greatly against the jury's finding. See Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App. 2000); Meraz, 785 S.W.2d at 146.

Boddie's expert witness, Dr. Potterif, testified that Boddie suffers from major effective bipolar disorder mixed with mania and depression alternating. Dr. Potterif stated that when a person, afflicted with bipolar disorder, like Boddie, is in a manic state he has limited ability to control impulses and energy and distinguish between right and wrong. Dr. Potterif testified that Boddie was most likely in a manic episode at the time of the offense and that it was probable Boddie did not know the difference between right and wrong. However, Dr. Potterif testified that it was also probable that Boddie's intent was to hurt Williams. In a threatening phone call Boddie stated he was coming over to hurt Williams. Approximately thirty minutes later Boddie arrived at Williams' home and carried out his threat. Dr. Potterif testified that Boddie's antisocial behavior did not necessarily spring from his mental condition. Furthermore, Dr. Potterif testified that it was probable that a person, such as Boddie, could be bipolar and have a manic episode but still not meet the definition of legal insanity. Likewise, the court of criminal appeals has found that a person may be insane from a medical standpoint, yet at the same time fail to satisfy the legal definition of insanity. See Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978). In addition, Dr. Potterif testified that Boddie's act of fleeing from the scene was a very likely, even probable, indication that Boddie knew the conduct he was engaging in was wrong. Knowledge of wrongful conduct can be indicated by an attempt to elude police officers. See Runnels v. State, 276 S.W. 289-90 (Tex. Crim. App. 1925). Thus, Boddie's own acts, as well as expert testimony cast serious doubts on Boddie's claim that his inability to discern right from wrong which results from his mental disease rose to the level of legal insanity.

Although expert witnesses are capable of giving testimony that may aid the jury in its determination of the ultimate issue, those same experts may not dictate the determination of that issue. See Graham, 566 S.W.2d at 949. The ultimate issue of criminal responsibility is beyond the province of expert witnesses. See id. Jury decisions have been accorded great deference, even in the face of a powerful record containing uncontested medical evidence that points toward acquittal. See id. at 950. Moreover, it is not necessary for the State to present expert medical testimony that a defendant is sane in order to counter the defense experts. See id. Jury findings that the accused was sane have been upheld even though no medical expert testified to that effect. See Hernandez v. State, 247 S.W.2d 260, 260 (Tex. Crim. App. 1952); Ross v. State, 220 S.W.2d 137, 143 (Tex. Crim. App. 1949). A defendant is not entitled to a judgment of acquittal simply because he offers expert testimony on the issue of insanity and the government attempts to rebut it without any expert witnesses. See Guidroz v. State, 679 S.W.2d 586, 588 (Tex. App.San Antonio1984, pet. ref'd). Thus, while a jury may not arbitrarily disregard expert testimony, it is not bound by the conclusions of a medical expert merely because that opinion is not challenged by some other expert. See Graham, 566 S.W.2d at 950-51; Hernandez, 247 S.W.2d at 260.

A jury may accept or reject in whole or in part the opinion testimony of a witness, and they may even accept lay testimony over that of experts. See

Preston v. State, 457 S.W.2d 279, 280 (Tex. Crim. App. 1970); Alvarado v. State, 818 S.W.2d 100, 105 (Tex. App.San Antonio 1991, no pet.); Morris v. State, 744 S.W.2d 290, 295 (Tex. App.Corpus Christi 1987). To this end, appellate courts should only exercise their jurisdictional authority regarding factual sufficiency reviews to prevent a manifestly unjust result. See Clewis, 922 S.W.2d at 135. An appellate court is not free to reweigh the evidence and set aside a jury verdict merely because it feels a different result is more reasonable. See id. Furthermore, the jury is the judge of the facts proven and the weight to be given the testimony, and it remains the jury's exclusive right to resolve conflicting testimony and to determine which evidence it chooses to believe in the face of inconsistent testimony. Tex. Crim. Proc. Code Ann. 38.04 (Vernon 1979); Scugoza v. State, 949 S.W.2d 360, 362 (Tex.App.San Antonio 1997, no pet.). Therefore, based on weighty precedent and the facts adduced at trial, we find that a reasonable jury could have determined that Boddie's legal insanity defense was not proven by a preponderance of the evidence. The jury was free to reject it in determining his guilt.

Boddie asserts that once he has met his burden of production and persuasion, the State must prove the defendant's sanity by proof beyond a reasonable doubt. See Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987). This is true when a prior, unvacated adjudication of insanity is shown. See Manning, 730 S.W.2d at 749. If such a prior, unvacated adjudication of insanity is shown, then the State must prove the accused's sanity at the time of the offense beyond a reasonable doubt. See id. at 749. Although the record reflects that Boddie has a long history of mental illness, the record on appeal does not contain a prior, unvacated adjudication of insanity. Therefore, from a sufficiency standpoint the burden never shifted back to the State. The jury was free to weigh the evidence of Boddie's mental illness in conjunction with the facts tending to belie his claim of insanity at the time of the offense and reach a verdict of guilty.

Ultimately the issue of insanity at the time of the offense excusing criminal responsibility 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. Graham, 566 S.W.2d at 952. The evidence contained in the record is factually sufficient to support the jury's verdict of guilt and

therefore, we affirm Appellant's conviction.

Alma L. L pez, Justice Do Not Publish