                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00077-CR



         SHANNON MARK BATTEE, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 115th District Court
                Upshur County, Texas
                Trial Court No. 15,658




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION
        In midsummer 2010, the admittedly mentally ill Shannon Mark Battee fled a Gilmer

grocery store parking lot in his green truck, with police officer Larry Sewell pursuing in a

marked police vehicle. In a bench trial, Battee was convicted of felony evading arrest and was

sentenced to ten years’ confinement. 1 See TEX. PENAL CODE ANN. § 38.04. 2 On appeal, Battee

seeks reversal based on an allegedly improper waiver of his right to be tried by a jury and the

denial of his insanity claim. We affirm the judgment of the trial court because (1) the lack of a

written waiver of a jury was harmless error and (2) sufficient evidence supports the trial court’s

rejection of Battee’s insanity defense.

        Although not relevant to Battee’s appellate issue on jury waiver, a summary of the

evidence will provide the context of the offense and be helpful for discussing his insanity point.

        Officer Sewell was called to a local Brookshire’s parking lot July 15, 2010. Sewell said

there had been some offense at the same location a couple of days before, and he was responding

to a report that the same involved person was again present at the parking lot. Sewell recognized

a green truck from the prior incident. The truck left the parking lot and sped away. Sewell said

he pursued the truck for about fifteen to sixteen miles at speeds of beyond 100 miles per hour.




1
 The trial court found that a deadly weapon, the vehicle, was used or exhibited in the course of the offense, thus
enhancing the range of punishment. See TEX. PENAL CODE ANN. § 12.35(c)(1) (West Supp. 2012).
2
 See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 4386 (current version at TEX.
PENAL CODE ANN. § 38.04 (West Supp. 2012)).



                                                        2
This testimony is corroborated by a video recorded from the dash of Sewell’s police vehicle. 3

Consistent with Sewell’s description of events, Battee, later identified as the truck’s driver, can

be seen passing vehicles on the right shoulder, driving in the center turn lane, and driving in the

opposite lanes, i.e., driving into oncoming traffic. At one point, Battee pulled into the parking lot

of a truck stop, slowed, and stopped. Almost immediately, and after Sewell opened the door of

his car but before he exited, Battee sped away again. In the course of the chase, one police car

with lights flashing passed Battee in the oncoming lane; another car, also with lights flashing,

pulled onto the shoulder on Battee’s side of the road, facing Battee; and a third police car, lights

flashing, passed Sewell and overtook Battee around the time Battee swerved from side-to-side on

the four-lane highway and finally came to a stop. Battee finally was slowed and pulled to the left

shoulder facing oncoming traffic. Before the vehicle came to a complete stop, the driver side

door was seen to be open. As the vehicle rolled to a stop, Battee leapt from the truck and ran

into a field. Sewell said that, though it could not be clearly seen in the video recording, Battee

jumped from the truck while it was still moving.                      Sewell gave pursuit and eventually

apprehended Battee.

         In his testimony, Battee said that he ran from the vehicle because he smelled gas and

feared an explosion and that, when he realized Sewell was behind him, he “just put [his] hands

up and went with them.” Sewell, though, said he had to chase Battee for thirty to a hundred

yards, and Battee did not willingly cease running from him.



3
 The video recording introduced into evidence is formatted to contain data next to the video, and this data shows the
police cruiser’s speed and other information.
                                                         3
(1)    The Lack of a Written Waiver of a Jury Was Harmless Error

       Under Texas law, a criminal defendant, except one against whom the death penalty is

sought, may waive his or her right to a jury trial; but such waiver must be in writing and made in

person, with the consent of the trial court and State. TEX. CODE CRIM. PROC. ANN. art. 1.13(a)

(West Supp. 2012). Battee correctly notes that the record does not include a written waiver of

jury trial. Battee claims that the absence of such a formal waiver and the lack of trial court

admonishments regarding waiver warrant reversal of the conviction.

       Certainly, failure to comply with Article 1.13(a) is error. Johnson v. State, 72 S.W.3d

346, 348–49 (Tex. Crim. App. 2002); Lopez v. State, 71 S.W.3d 511, 513–14 (Tex. App.—Fort

Worth 2002, no pet.). While the record reveals no written waiver of a jury, there are some

references indicating Battee’s actual waiver of a jury. At the beginning of the bench trial, the

trial court stated, “[F]or housekeeping purposes on April 16th Mr. Battee waived his right to a

jury but we’ve not -- has he -- he hasn’t been arraigned . . . .” Neither Battee nor his attorney

contested this statement. The trial court’s docket sheet contains an entry dated April 16, 2012,

stating that the defendant waived his right to a jury trial. When Battee was on the stand, his

attorney asked him the following question, eliciting the quoted responses:

              Q.       . . . . You, Shannon, the question I do need to approach with you,
       you know, you said you didn’t really understand whenever you waived a jury, that
       you said that I was filing that not guilty by reason of insanity thing, okay. Do you
       understand why I’m doing that?

               A.     Why you waived the jury?




                                                4
                Q.      No.

                A.      I mean, why you said plea insanity.

The discussion then concerned whether Battee wanted to plead not guilty by reason of insanity

and the reasons for such a plea. There was no suggestion at all that Battee did not acquiesce in,

or intend to effect, a waiver of his right to a jury trial. Finally, the trial court’s judgment is titled

“Judgment of Conviction by Court–Waiver of Jury Trial.”

        The situation before us is controlled by the reasoning in Johnson. There, the absence of a

formal waiver of jury trial was found to be error. Johnson, 72 S.W.3d at 347. Because the error

concerned a violation of a statutory right, the issue was subject to a harmless error analysis under

Rule 44.2(b) of the Texas Rules of Appellate Procedure. Id. at 348; TEX. R. APP. P. 44.2(b). To

determine whether Johnson’s substantial rights were affected by the violation of Article 1.13(a),

the court looked to “ascertain whether he understood his right to trial by jury before his bench

trial began.” Id. at 349. In Johnson, as here, there was no allegation that Battee did not know

about his right to a jury trial. Id. The Johnson court also cited the judgment in that case, which

said Johnson had waived his right to a jury. Here, the judgment’s title and the trial court’s

docket sheet state a jury was waived, and the waiver was discussed in open court with the

defendant and his attorney present. There was no claim of surprise or disagreement regarding

the waiver. A recitation of a waiver of jury trial is “binding in the absence of direct proof of [its]

falsity.” Id. (quoting Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on

reh’g)). The Johnson court reasoned that, because “waiver” requires knowledge of the right

being waived, and because, lacking any evidence that Johnson did not know of his right to a jury,
                                                   5
he must have known of such a right and therefore waived it, as evidenced by the recitation of that

fact in the judgment. Similarly, there is nothing here to contradict the statements in the court’s

docket sheet, judgment, and references in the trial proceedings that Battee did not know about his

right to a jury and waived that right. As in Johnson, “although Art. 1.13 was violated,” the

appellant “was not harmed by the violation because the record reflects that he was aware of his

right to a jury trial and opted for a bench trial.” Id.

         Although Article 1.13(a) was violated, the error did not affect Battee’s “substantial

rights” and is, therefore, harmless. We overrule this contention of error. 4

(2)      Sufficient Evidence Supports the Trial Court’s Rejection of Battee’s Insanity Defense

         Battee also contends that the “evidence is insufficient to support Appellant’s conviction

as indicted because he was insane at the time that the offense occurred.”                            Insanity is an

affirmative defense, which must be proved by a preponderance of the evidence. TEX. PENAL

CODE ANN. §§ 2.04, 8.01 (West 2011). A defendant asserting an insanity defense must prove by

a preponderance of the evidence “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). Whether the defense of insanity was proved is a decision that lies within the

province of the jury (or, as here, the judge as sole fact-finder), not only as to the credibility of

witnesses and the weight of the evidence, but also as to the limits of the defense. Bigby v. State,

892 S.W.2d 864, 878 (Tex. Crim. App. 1994). When we review the fact-finder’s rejection of an

4
 In his brief, Battee also complains that the record contains no admonishment from the trial court regarding the
perils of waiving a jury trial. Battee offers no authority establishing that such admonishments are required. If he is
referring to the admonishments in Article 26.13, that statute applies to pleas of guilty and is not applicable here. See
TEX. CODE CRIM. PROC. ANN. art. 26.13 (West Supp. 2012).
                                                           6
insanity defense, we must determine whether the finding is so against the great weight and

preponderance of the evidence as to be manifestly unjust. Id. at 875.

        Evidence was introduced that Battee had been hospitalized for mental illness at least four

times since 1995. The State presented testimony from a psychologist, Dr. Thomas Allen, who

testified that his evaluation of Battee indicated a mood disorder, which Allen called bipolar

disorder, and not “a formal thought disorder like schizophrenia.” Allen diagnosed Battee as

having severe mental illness, but found him to have been legally sane at the time of leading

Sewell on the high-speed chase. On the other hand, Battee presented Dr. Frank Murphy, a

psychiatrist, who diagnosed Battee as suffering from schizophrenia, 5 rather than bipolar disorder.

        Battee’s expert, Murphy, said he had known Battee since 2005. In his written report,

Murphy said he treated Battee until November 2006. In making his distinction between bipolar

disorder and schizophrenia, Murphy testified that persons suffering from bipolar disorder suffer

episodes of manic behavior, but treatment or time allow that person to “go[] back to their level of

functioning before the episode occurs.” Battee, though, exhibited “negative symptoms” even

between “episodes of mania.” As an example, Murphy pointed out Battee’s flat affect at trial,

which Murphy did not attribute to malingering. Murphy concluded, “[A]t the time of the alleged




5
 Although not mentioned in Murphy’s report, Allen’s report states that Battee told Allen he was currently prescribed
Risperdal and had previously taken Abilify. Risperdal and Abilify are medications used to treat schizophrenia. See
AHFS      Consumer     Medical     Information,   Risperidone,      U.S.    National     Library    of    Medicine,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000944/ (last visited Dec. 11, 2012); AHFS Consumer Medical
Information,         Aripiprazole,          U.S.         National            Library          of          Medicine,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000221/ (last visited Dec. 11, 2012).

                                                         7
offense, [Battee] was under the influence of a severe mental illness or defect, and was not aware

that the conduct of which he is accused was wrong.”

        The two testifying experts diverged in their opinions of Battee’s actions resulting in this

indictment.     Murphy said he believed Battee when he said he was not trying to escape

prosecution when he ran from the police; Murphy also said Battee’s fleeing from police was

irrational. Battee told Murphy he did not know he was being pursued and was hurrying to town

for a meeting and to get his truck fixed. 6 Murphy did say, though, he could offer no explanation

for Battee’s stopping at the parking lot, then driving away after seeing Sewell, other than it was

an attempt to evade the officer.

        Murphy based his opinion, at least in part, on the fact that Battee had a bachelor’s degree

in criminal justice. Murphy said Battee’s

        pattern of crimes 7 is not a pattern of someone who carefully thinks out crimes and
        commits them with the intention of escaping prosecution . . . he’s an intelligent
        fellow . . . it just doesn’t make sense if he were premeditating these acts that they
        would be so poorly thought out and -- and the gain, the financial gain be so little.

There had been testimony that Battee received a bachelor’s degree in 1995. Over the years, he

had had at least two confrontations with law enforcement, where he had evaded or run from

them, and at least one of these events involved use of a vehicle.



6
 In cross-examining Murphy, the State suggested Battee had been a suspect in thefts and assaults in the two days
before the incident in question, but no testimony was offered supporting this assertion.
7
 Battee’s mother, Norma Kincaid, testified to his prior confrontations with law enforcement. She said that, in 2003,
he had been arrested for fleeing from police; in or around 2007, there was an incident where “we was driving slow
and the cops were behind him.” Including these events, there were three or four occasions where Battee experienced
“manic episodes,” according to his mother, and police were involved.
                                                         8
            The trial court itself questioned Murphy, pointing out that, in the chase video recording,

Battee used turn signals to indicate lane changes. The court said this

            would indicate that he saw the police officer and the lights flashing and the
            vehicle that was pursuing him . . . . Do you think that Mr. Battee is so delusional
            that he -- well, obviously he -- he has some understanding of the laws, the traffic
            laws because he’s using his blinkers as he’s turning lanes.

Murphy had no clear opinion as to what the use of signals might mean. The court stated that,

based on its view of the driving and signaling behavior in the video, this conduct “indicate[d] . . .

he might have known he was being pursued.”

            Rachel Harrington interviewed Battee shortly after his arrest.              Harrington had a

bachelor’s degree in social work and a master’s degree in rehabilitation counseling. In her

employment with Community Health Corporation, she evaluated Battee in jail after his arrest and

recommended hospitalization. She described Battee, in the hours after arrest, as “extremely

delusional,” and not oriented as to why he was in jail. Battee, though, according to Harrington,

was convinced he would be released in two weeks at precisely 2:00 p.m. to tend to his mother

and matters on her land. Later in her testimony, Harrington described Battee in their post-arrest

interview as “very delusional,” “hostile,” and “clearly was not in the right state of mind.” These

observations led Harrington to recommend hospitalization.

            Kincaid described his history of strange behaviors, such as calling her in rapid succession

and either hanging up or asking what she was doing then hanging up; 8 saying “irreverent things”;

pacing; and punching holes in walls to kill imaginary animals. She described an incident where


8
    When asked about these telephone calls, Battee said he did not recall the events.
                                                             9
Battee drove her truck, then apparently locked the door to the house, thus preventing Kincaid

from getting in to use the telephone. Kincaid said she had learned to just leave Battee alone

when he started exhibiting these extreme behaviors. After the hospitalization following the

instant offense, Kincaid testified that Battee had been “better,” was on unspecified medications,

and had had no further “episodes.”

        Battee took the stand and confirmed his history of prior hospitalizations as well as his

bachelor’s degree and previous employment as a guard in Dallas and Gregg Counties. He

explained the chase by saying the speedometer on his truck had been malfunctioning and he was

driving at high speeds to get the meter to “kick in.” Regarding the momentary stop in the

parking lot, he said he did not know there was a law enforcement officer there. When Battee

finally pulled over, he said he smelled gas, which led him to run away from the vehicle.

        The trial court found that, while Battee suffered mental illness, he also knew that

speeding, driving in the wrong lanes, and running from police were wrong. “The issue of

insanity at the time of the offense lies within the province of the [fact-finder], and we will

overturn its decision only where insanity is undisputed or resolved to one end of the spectrum

outside the realm of discretion.” Reyna v. State, 116 S.W.3d 362, 367 (Tex. App.—El Paso

2003, no pet.) (citing Bigby, 892 S.W.2d at 878). It cannot be said that the trial court’s judgment

is so against the great weight and preponderance of the evidence as to be manifestly unjust. See

Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990). 9 While both examining doctors


9
 Judge Cochran’s concurrence in Brooks v. State, 323 S.W.3d 893, 924 n.67 (Tex. Crim. App. 2010) (Cochran, J.,
concurring), suggests that the standard in Meraz, 785 S.W.2d at 154, is still the appropriate review where a
defendant had the burden of proof on an affirmative defense. See also Johnson v. State, No. 05-09-00133-CR, 2010
                                                      10
agreed Battee suffered from mental illness, they differed on the subject of Battee’s sanity at the

time of the offense. The trial court was able to view, and weigh the credibility of, those experts

and Battee himself. The court was free to ascribe whatever weight it deemed appropriate to the

various bits of evidence, which included a video recording of the offense, as well as the opinions

of the witnesses. Based on all the evidence, the trial court could conclude that Battee failed to

prove by a preponderance of the evidence that he did not know, because of severe mental disease

of defect, that his conduct was wrong. See TEX. PENAL CODE ANN. § 8.01(a). We overrule this

contention of error.

        We affirm the trial court’s judgment and sentence.



                                                     Josh R. Morriss, III
                                                     Chief Justice

Date Submitted:           November 26, 2012
Date Decided:             December 19, 2012

Do Not Publish




Tex. App. LEXIS 10051 (Tex. App.—Dallas Dec. 20, 2010, no pet.) (not designated for publication) (finding Meraz
still applies post-Brooks to review affirmative defense). We cite Johnson not for any precedential value but simply
note it as we continue to discover the post-Brooks landscape. See Brooks, 323 S.W.3d at 912 (finding “no
meaningful distinction” between standards of review in Jackson v. Virginia, 443 U.S. 307 (1979), for legal
sufficiency of evidence, and Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), for factual sufficiency of
evidence).
                                                        11
