                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-18-00755-CR

                                     Jonathan Andrew PERALES,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2018CR0068
                           Honorable Melisa C. Skinner, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 8, 2020

AFFIRMED

           Jonathan Perales appeals his conviction for capital murder. He argues that his mental

health expert should have been allowed to testify about Perales’s attention-deficit/hyperactivity

disorder (ADHD) during the guilt phase of his trial, and that excluding that testimony violated

Perales’s right to due process. We affirm the trial court’s judgment.

                                            BACKGROUND

           Jonathan Perales drove to a neighborhood in Universal City at night, picked out a house to

burglarize, knowing that the cars parked at the home suggested that people were likely asleep
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inside. On that night, the Robinson family forgot to lock their back door, and Perales slipped in

unnoticed. Perales made two trips into the house and back to his car with the family’s possessions.

Before his third trip into the house, Mrs. Robinson awoke to use the bathroom.

       Upon hearing a noise, Mrs. Robinson peered out her bathroom window and saw Perales in

the driveway. She went back into her bedroom and woke Mr. Robinson to tell him that something

was wrong. He collected his gun and flashlight and went to his bedroom door. Mr. Robinson

shouted at Perales, who had reentered the house, to leave.

       The two men exchanged gunfire, and both were hit.

       Perales made his way out of the house and drove a short way down the street before he

abandoned his car and knocked on Mr. Robinson’s neighbor’s door. Perales was scared about the

severity of his gunshot wounds and wanted someone to call an ambulance.

       Meanwhile, Mrs. Robinson held her husband with a pillow under his wound for support

while he bled internally. Mrs. Robinson’s daughter called the police. Although emergency

personnel responded quickly, Mr. Robinson died from a gunshot wound to the chest.

       Perales was charged with capital murder.

       At trial, neuropsychologist Dr. Daneen Milam testified that she met with Perales at the jail

and spent several hours administering a series of psychological tests. She testified that Perales

was dyslexic, which presented testing challenges, and that he suffered from ADHD, which affected

Perales’s rational decision-making ability. Perales presented the doctor’s testimony to show his

diminished ability to form the requisite mens rea for murder, i.e., intent. Dr. Milam testified to

Perales’s impulsivity as a result of ADHD, but not to his inability to form intent to commit an act.

The trial court excluded Dr. Milam’s proffered testimony on how Perales’s brain was affected by




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ADHD and dyslexia because it was not relevant to whether Perales acted intentionally. A jury

convicted Perales of capital murder.

       Perales appeals.

                                       STANDARD OF REVIEW

       We review the trial court’s decision to exclude evidence of mental illness for an abuse of

discretion. Henry v. State, 466 S.W.3d 294, 298 (Tex. App.—Texarkana 2015) (citing Jackson

v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005)).

                                 EXCLUDED EXPERT TESTIMONY

       Citing Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008), Perales argues that Dr.

Milam should have been permitted to testify in full about Perales’s difficulty with impulse control

and formation of intent due to his ADHD, and that the trial court erred by finding Dr. Milam’s

testimony irrelevant to the guilt phase.

A.     Applicable Law

       “Texas does not recognize diminished capacity as an affirmative defense.” Henry, 466

S.W.3d at 298 (quoting Smith v. State, 314 S.W.3d 576, 590 (Tex. App.—Texarkana 2010, no pet.)

(citing Ruffin, 270 S.W.3d at 593; Jackson, 160 S.W.3d at 573)). However, “[a]s with the other

elements of the offense, relevant evidence may be presented . . . to negate the mens rea element.

And, this evidence may sometimes include evidence of a defendant’s history of mental illness.”

Jackson, 160 S.W.3d at 574; see also Ruffin, 270 S.W.3d at 594 (citing In re Winship, 397 U.S.

358, 363–64 (1970)) (holding that mens rea is a statutory element that the State must prove beyond

a reasonable doubt, making evidence of its absence relevant as a matter of due process).

       The determination of whether mental health evidence actually demonstrates the absence of

proof for the required mens rea lies within the purview of the trial judge’s sound discretion. See




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Jackson, 160 S.W.3d at 575 (reviewing the trial court’s decision to include or exclude mental

health testimony for an abuse of discretion); Fields v. State, 507 S.W.3d 333, 336–37 (Tex. App.—

Houston [1st Dist.] 2016, no pet.). If the evidence supporting diminished capacity does not truly

negate the required mens rea for an offense, that is, show that the defendant could not have acted

intentionally or knowingly, then it may be excluded as irrelevant. Fields, 507 S.W.3d at 336–37;

see also Ruffin, 270 S.W.3d at 588, 595 (reaffirming decision in Jackson and holding that both lay

and expert testimony of a mental disease or defect that directly rebuts the particular mens rea

necessary for the charged offense is relevant and admissible unless excluded under a specific

evidentiary rule, such as Rule 403). In other words, “[i]f evidence of a defendant’s mental illness

does not directly rebut a defendant’s culpable mens rea, a trial court is not required to admit it.”

Henry, 466 S.W. 3d at 299 (citing Mays v. State, 318 S.W.3d 368, 382 (Tex. Crim. App. 2010)).

B.      Analysis

        The diminished-capacity doctrine at issue in this case is a failure-of-proof defense in which

Perales hoped to show that the State failed to prove that he had the required state of mind at the

time of the offense. See Jackson, 160 S.W.3d at 573. But Dr. Milam’s testimony established that

Perales was likely to make unreasoned choices, not that he was incapable of forming the intent to

shoot a person See Ruffin, 270 S.W.3d at 594. Because Dr. Milam’s testimony did not directly

rebut intent, the trial court was not required to admit it. See id. at 596. After hearing a portion of

Dr. Milam’s testimony, the trial court acted within its discretion to exclude the remainder as

irrelevant. 1 See Fields, 507 S.W.3d at 337.




1
  Although Perales did not make a formal offer of proof, the attorneys and the trial court discussed at length the
testimony that Dr. Milam would give. The record provides conclusive proof that “the substance of the [excluded]
evidence was made known to the court,” see Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (citing TEX.
R. EVID. 103(a)(2)), and we conclude Perales preserved a claim of error, see id.; see also TEX. R. EVID. 103(a); TEX.
R. APP. P. 33.1.


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        Perales relies on Ruffin to argue that the court should have allowed his mental health expert

to continue her testimony, but that case is distinguishable. See Ruffin, 270 S.W.3d 586. In Ruffin,

the defendant’s mental health evidence was relevant to negate specific intent because he had been

charged with first-degree aggravated assault for shooting at police even though his mental

delusions convinced him that he was shooting at a trespasser. See id. at 594. Due to Ruffin’s

delusions, he could not form the intent to shoot at police as required for first-degree aggravated

assault, and the State could not meet its burden of proof. See id. Ruffin was nonetheless culpable

for aggravated assault in the second degree because he intended to shoot at people. See id. at 591,

594.

        In general, presenting evidence of mental illness does not then allow the defense to argue

that the defendant lacks the capacity to intentionally or knowingly perform an act. See Jackson,

160 S.W.3d at 574–75. In this case, unlike in Ruffin, the State had only the burden to prove that

the defendant intended to commit an act, which Perales’s expert could not rebut. See id. Under

this framework, Dr. Milam’s proffered testimony about how ADHD and dyslexia affect the brain

was not relevant to whether Perales acted intentionally, and the trial court did not abuse its

discretion to exclude it. See id.; Mays, 318 S.W.3d at 381 (concluding that evidence of mental

illness, including paranoid ideation, informs motive to kill, rather than state of mind, and is relevant

to punishment rather than guilt); Williams v. State, 502 S.W.3d 262, 276 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d) (concluding that evidence of post-traumatic stress disorder was not

appropriate to mitigate guilt).

        Since we find no error in the trial court’s ruling, we do not address Perales’s argument

regarding harmless error. See TEX. R. APP. P. 47.1; Burleson v. State, 819 S.W.2d 537, 539 (Tex.




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Crim. App. 1991) (Baird, J., concurring) (“[W]ithout error there can be no harm and a harmless

error analysis is wholly unnecessary.”).

                                           CONCLUSION

       The trial court did not abuse its discretion by excluding Dr. Milam’s proffered testimony

about how Perales’s brain was affected by ADHD and dyslexia as irrelevant to the question of

whether Perales acted intentionally.

       The trial court’s judgment is affirmed.

                                                       Patricia O. Alvarez, Justice

Do Not Publish




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