                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00187-CR


ERIC RAMON ACEVEDO                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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      In March 2008, Appellant Eric Ramon Acevedo stabbed and killed

Mollieann Worden, his ex-girlfriend. A jury convicted Acevedo of capital murder,

and the trial court sentenced him to an automatic life sentence.2 In a single point,

Acevedo argues that the trial court erred by prohibiting him from presenting



      1
       See Tex. R. App. P. 47.4.
      2
       The State waived the death penalty.
evidence that he acted under a diminished mental capacity when he killed

Worden. We will affirm.

      The court of criminal appeals has consistently reasoned that Texas does

not recognize diminished capacity as an affirmative defense. See Mays v. State,

318 S.W.3d 368, 380–81 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 1606

(2011); Ruffin v. State, 270 S.W.3d 586, 593 (Tex. Crim. App. 2008); Jackson v.

State, 160 S.W.3d 568, 573–74 (Tex. Crim. App. 2005). “The Texas Legislature

has not enacted any affirmative defenses, other than insanity, based on mental

disease, defect, or abnormality. Thus, they do not exist in Texas.” Ruffin, 270

S.W.3d at 593 (internal footnote omitted).      Instead, the diminished-capacity

doctrine is simply a failure-of-proof defense. Jackson, 160 S.W.3d at 573. As

with the other elements of the offense, relevant evidence, including evidence of

the defendant’s mental condition, may be presented to rebut or negate the

defendant’s culpable mens rea. Id. at 574. But evidence may not be admitted,

nor may defense counsel argue, that the defendant, because of his mental

condition, did not have the capacity to form the mens rea necessary for

commission of the offense. Id. As explained in Jackson,

      The State presented evidence that Appellant intentionally and
      knowingly caused the death of his brother. Appellant attempted to
      negate this evidence by introducing evidence of his history of mental
      illness through the testimony of his mother and sister, as well as the
      defense expert witness, Dr. Grigson. . . . The jury was able to hear
      all of this evidence, determine the weight of the evidence, and
      choose whether or not Appellant possessed the requisite mens rea
      to commit this offense. The jury believed that he did. The only thing
      Appellant was prevented from doing is arguing that the jury should


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      find that he did not have the capacity to make the decision to
      intentionally and knowingly cause bodily injury and thus should find
      him not guilty. However, presenting evidence of mental illness does
      not then allow the defense to argue that the defendant is absolutely
      incapable i.e., does not have the capacity to intentionally or
      knowingly perform an act. There is simply no defense recognized by
      Texas law stating that, due to the defendant’s mental illness, he did
      not have the requisite mens rea at the time of the offense because
      he does not have the capacity, or is absolutely incapable of ever
      forming that frame of mind.

Id. at 574–75.

      In this case, Dr. James Robert Womack testified for the defense that

Acevedo suffered from chronic posttraumatic stress disorder.         The trial court

permitted defense counsel to question Dr. Womack whether, in his opinion,

Acevedo intentionally or knowingly killed Worden, but the trial court prohibited

defense counsel from questioning Dr. Womack whether Acevedo, because of his

mental condition, had the capacity to intentionally or knowingly kill Worden.

Thus, the trial court permitted Acevedo to introduce evidence of his mental

condition to negate the mens rea element, but it prohibited Acevedo from

presenting evidence of his mental condition to demonstrate that he lacked the

capacity to form the requisite mens rea. As Acevedo himself acknowledges, the

trial court’s evidentiary ruling is consistent with Jackson’s directive and the

binding caselaw addressing diminished capacity. See Jackson, 160 S.W.3d at

573–75; see also Mays, 318 S.W.3d at 380–81; Ruffin, 270 S.W.3d at 593.

Accordingly, we hold that the trial court did not abuse its discretion by prohibiting

Acevedo from presenting evidence that he acted under a diminished mental



                                         3
capacity when he killed Worden.          See Jackson, 160 S.W.3d at 573–75;

Montgomery v. State, 810 S.W.2d 372, 378–79 (Tex. Crim. App. 1990) (op. on

reh’g) (stating that appellate court reviews trial court’s decision to admit or

exclude evidence for an abuse of discretion). We overrule Acevedo’s sole point

and affirm the trial court’s judgment.




                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 17, 2011




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