      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00707-CR



                                Achim Joseph Marino, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 9024196, HONORABLE BOB PERKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Achim Joseph Marino guilty of capital murder. See Tex. Pen.

Code Ann. § 19.03 (West Supp. 2004). The district court sentenced him to life in prison, the State

having waived the death penalty. See id. § 12.31(a) (West 2003); Tex. Code Crim. Proc. Ann. art.

37.071, § 1 (West Supp. 2004). Appellant argues that the penal code definition of insanity denies

equal protection of the laws, the jury’s failure to find him insane was against the great weight of the

evidence, and the prosecutor engaged in improper jury argument. We will overrule these contentions

and affirm.

               On the morning of October 24, 1988, appellant robbed and sexually assaulted an

employee of an Austin pizza restaurant, then fatally shot her in the head. The primary issue at trial

was whether appellant was sane at the time of the offense.
                Appellant testified that his family has a history of mental illness. He began seeing

spirits or demons as a child. According to appellant, these spirits instructed him in their “belief

systems.” By the time he was twelve, appellant was engaging in such disruptive behavior that he

was placed in a private psychiatric hospital in Austin. Following his release from the hospital four

years later, appellant lived in a series of shelters and also spent time in the Austin State Hospital.

Appellant said that he abused drugs and alcohol in an effort to control the spirits. He went to prison

for the first time in 1982, at the age of twenty-three, after a theft conviction. Ten days after he was

paroled for that offense, he committed an armed robbery and returned to prison. Appellant testified

that in the summer of 1988, the spirits were urging him to kill a blond, white woman. In July, he

sexually assaulted a woman but did not kill her because she was neither white nor blond.

                Appellant described the murder at the pizza restaurant as a “human sacrifice” and a

“ritual”—in his words, “certain things . . . had to be said and done and . . . they were done.”

Appellant was asked during cross-examination if, at the time of the murder, he knew the difference

between right and wrong. He answered:


        I did know—beyond a reasonable doubt, I knew that general knowledge thou shalt
        not murder, which is defined as the killing of an innocent person in an unjust manner.

            I also knew in this country, as well as Europe, that murder was illegal. It’s the
        same definition, but the point of inquiry here is not what I knew, but what I believed.
        What I mean by that is what I believed is that I had the right to kill.


Appellant acknowledged that what he did was legally wrong, but asserted that it was not wrong from

his “faith standard” at that time. Appellant testified that in 1995, while in prison for another offense,




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he experienced a religious conversion. Three months later, he wrote his first letter to the authorities

admitting his guilt of the murder.

                  Dr. Jay Fogelman, a psychiatrist, examined appellant and reviewed his extensive

psychiatric record at the request of defense counsel.             Fogelman testified that appellant is

schizophrenic and psychotic. He added that appellant is “the sickest of the sickest I’ve seen” in

twenty-five years of practice. Fogelman testified that appellant “believes he was mandated to kill

just one person, and that’s what he did.” But Fogelman did not consider appellant to be legally

insane:


               I want to state early on, early on that this patient, in my opinion, was clearly sane
          at the time of this rape, robbery, murder. I also want to tell you—you heard him
          yesterday. You heard him talk yesterday. You heard him ramble. You heard him
          say things that were scary. You probably have never met anyone as frightening. I
          hope you haven’t met anyone as frightening as him.


                  A second psychiatrist, Dr. Mary Anderson, examined appellant at the request of the

district court. She agreed with Dr. Fogelman that appellant is delusional, but like him was of the

opinion that appellant was sane at the time of the offense:


          In my opinion, Mr. Marino knew that his behavior was wrong at the time of the
          offenses. He says he knew that it was illegal. He says he knew that according to our
          society that other people would see it as wrong, as illegal.

              He tells us that he knows that raping and murdering was also for the purpose of
          revenge, that he selected this person for revenge. It was, in particular, a white female
          with blonde hair for the purpose of being—for revenge.

              In my opinion, he was sane at the time of these offenses in that whatever his
          mental state at that time, he knew his behavior was wrong.



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                It is an affirmative defense to prosecution that, at the time of the conduct charged, the

defendant, as a result of severe mental disease or defect, did not know that his conduct was wrong.

Tex. Pen. Code Ann. § 8.01(a) (West 2003). The burden is on the defendant to prove the affirmative

defense by a preponderance of the evidence. Id. § 2.04(d). In point of error three, appellant contends

the jury’s failure to find that he was insane at the time of the offense is against the great weight and

preponderance of the evidence. See Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App. 1994);

Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).

                Appellant concedes that both psychiatrists were of the opinion that he was legally

sane at the time of the offense. He points out, however, that the sanity issue is not strictly a medical

one, but one that also involves ethical and legal considerations. Graham v. State, 566 S.W.2d 941,

948 (Tex. Crim. App. 1978). The ultimate issue of criminal responsibility is beyond the province

of an expert witness, otherwise the issue “would be tried in hospitals rather than in courts.” Id. at

949. While expert testimony might be helpful to the trier of fact, the final determination of insanity

is outside the purview of medical experts and should be left to the discretion of the trier of fact. Id.

at 952. In deciding the issue, the jury may consider not only the medical testimony but the

circumstances of the offense and life experiences of the defendant. Ross v. State, 220 S.W.2d 137,

139 (Tex. Crim. App. 1949).

                We have no doubt that appellant was, and is, psychotic and delusional. But even if

appellant truly believed that he had “a right to kill” under his own personal “faith standard,” his

testimony reveals that he fully appreciated that his conduct was both unlawful and morally wrong

under society’s standards. Having reviewed all the evidence, we conclude that the jury’s failure to



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find that appellant did not know that his conduct was wrong was not so against the great weight and

preponderance of the evidence as to be manifestly unjust. Point of error three is overruled.

                In point of error two, appellant urges that the distinction between adults and juveniles

with respect to the insanity defense violates equal protection. U.S. Const. amend. XIV. Under the

penal code, an adult is absolved of criminal responsibility only if, as a result of severe mental disease

or defect, he did not know that his conduct was wrong. Tex. Pen. Code Ann. § 8.01(a). But under

the family code, a juvenile is not criminally responsible if, as a result of mental illness or retardation,

he “lacks substantial capacity either to appreciate the wrongfulness of [his] conduct or to conform

[his] conduct to the requirements of law.” Tex. Fam. Code Ann. § 55.51(a) (West 2002) (emphasis

added). Appellant argues that affording juvenile offenders this broader insanity defense is not

rationally related to a legitimate state interest. See Gregory v. Ashcroft, 501 U.S. 452, 470 (1991)

(age is not suspect classification; requires only rational basis).

                Appellant did not raise this issue in the trial court and thus failed to preserve it for

appeal. See Jenkins v. State, 912 S.W.2d 793, 808 (Tex. Crim. App. 1995). The contention lacks

merit in any case. The United States Constitution does not mandate elimination of all differences

in the treatment of adult and juvenile offenders. Schall v. Martin, 467 U.S. 253, 263 (1984). The

State has a parens patriae interest in preserving and promoting the welfare of children that makes a

juvenile proceeding fundamentally different from an adult criminal trial. Id.; Lanes v. State, 767

S.W.2d 789, 791-92 (Tex. Crim. App. 1989). The same State interests that justify the creation of

a separate and distinct justice system for juvenile offenders also justify the use in juvenile




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proceedings of a different, broader definition of insanity than is used in the adult criminal system.

Point of error two is overruled.

                Finally, in point one, appellant urges that the prosecutor engaged in improper jury

argument. He did not object to the argument, however, and thus the matter was not preserved for

review. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). We therefore overrule point

of error one.

                The judgment of conviction is affirmed.




                                              __________________________________________

                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 1, 2004

Do Not Publish




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