                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00171-CR

DUNG NGOC THI-ZELUFF,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 82nd District Court
                               Falls County, Texas
                              Trial Court No. 9909


                           MEMORANDUM OPINION


       In this case, appellant, Dung Ngoc Thi-Zeluff, was convicted of capital murder of

a person under ten years of age. See TEX. PENAL CODE ANN. § 19.03(a)(8) (West 2019). On

appeal, Dung contends that the evidence is factually insufficient to establish that she was

sane at the time of the murder. We affirm.
                        I.     THE AFFIRMATIVE DEFENSE OF INSANITY

        In her sole issue on appeal, Dung challenges the factual sufficiency of the jury’s

rejection of her insanity defense. In other words, Dung contends that she offered so much

evidence in support of her insanity defense and the State offered so little evidence

rebutting her defense that the jury’s rejection of her affirmative defense was against the

great weight and preponderance of the evidence. See Matlock v. State, 392 S.W.3d 662, 670

n.29 (Tex. Crim. App. 2013) (“Technically, a defendant’s claim is not one of ‘factual

sufficiency.’ . . . The defendant is claiming that his evidence is more than sufficient to

support his affirmative defense, while the State’s evidence is insufficient to rebut it.”).

a.      Standard of Review

        In McAfee v. State, the First Court of Appeals expressed the standard of review for

factual-sufficiency challenges to the rejection of an affirmative defense of insanity as

follows:

        The Texas Court of Criminal Appeals has adopted the civil standard of
        factual-sufficiency review for challenges to the rejection of an affirmative
        defense because the burden of proof is that of “preponderance of the
        evidence,” the same burden applied in civil proceedings. Id. at 671 (citing
        Meraz v. State, 785 S.W.2d 146, 149, 153-55 (Tex. Crim. App. 1990)). In
        making a factual-sufficiency claim, the defendant is asserting that,
        considering the entire body of evidence, the jury’s adverse finding on his
        affirmative defense was so “against the great weight and preponderance”
        of the evidence as to be manifestly unjust. Id.

               Accordingly, we must view the entirety of the evidence in a neutral
        light. Id. However, we “may not usurp the function of the jury by
        substituting [our] judgment in place of the jury’s assessment of the weight
        and credibility of the witnesses’ testimony.” Id. We may “sustain a
Thi-Zeluff v. State                                                                    Page 2
        defendant’s factual-sufficiency claim only if, after setting out the relevant
        evidence and explaining precisely how the contrary evidence greatly
        outweighs the evidence supporting the verdict, [we] clearly state[] why the
        verdict is so much against the great weight of the evidence as to be
        manifestly unjust, conscience-shocking, or clearly biased.” Id. If we
        determine that the evidence supporting an affirmative defense so greatly
        outweighs the State’s contrary evidence that the verdict is manifestly
        unjust, then we may reverse the trial court’s judgment and remand for a
        new trial. Id. at 672.

                 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)]. To establish the affirmative defense of insanity, the defendant must
        prove “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.”
        Id. § 8.01(a). The law presumes that the accused is sane, and the accused
        bears the burden of proving by a preponderance of the evidence that he is
        insane. Martinez v. State, 867 S.W.2d 30, 33 (Tex. Crim. App. 1993); see Ruffin
        v. State, 270 S.W.3d 586, 591-92 (Tex. Crim. App. 2008) (“Texas
        law . . . presumes that a criminal defendant is sane and that he intends the
        natural consequences of his acts.”).

                The insanity defense focuses on whether the accused understood the
        nature of his action and whether he knew he should not do it. Ruffin, 270
        S.W.3d at 592; Bigby v. State, 892 S.W.2d 864, 877-78 (Tex. Crim. App. 1994).
        In the context of the insanity defense, the word “wrong” means illegal.
        Ruffin, 270 S.W.3d at 592. If the accused knows that his conduct is “illegal”
        by societal standards, then he understands that his conduct is wrong, even
        if, due to a mental disease or defect, he thinks his conduct is morally
        justified. See id. Thus, proof of a mental disease or defect alone is not
        sufficient to establish an affirmative defense of insanity. Nutter v. State, 93
        S.W.3d 130, 132 (Tex. App.—Houston [14th Dist.] 2001, no pet.); see Bigby,
        892 S.W.2d at 877-78 (“The issue of insanity is not strictly medical. It also
        involves both legal and ethical considerations.”).

                Although jurors may not arbitrarily disregard expert testimony as to
        insanity, neither may they give conclusive effect to such testimony. Graham
        v. State, 566 S.W.2d 941, 950-51 (Tex. Crim. App. 1978) (“Opinion testimony
        does not establish material facts as a matter of law.”). The circumstances of
        the crime itself are also important in determining the mental state of the
Thi-Zeluff v. State                                                                       Page 3
        accused at the time of the commission of the offense, and evidence
        indicating knowledge of wrongful conduct, such as an attempt to conceal
        incriminating evidence or elude law enforcement, may be considered. Id.
        at 951; see also Torres v. State, 976 S.W.2d 345, 347-48 (Tex. App.—Corpus
        Christi 1998, no pet.) (holding that, in reaching its decision on insanity, jury
        may consider circumstantial evidence, including defendant’s demeanor
        before and after committing crime, defendant’s attempts to evade police or
        conceal incriminating evidence, defendant’s expressions of regret or fear of
        consequences of his actions, and any other possible explanations for
        defendant’s behavior).

                Whether the defense of insanity was proved is a decision that lies
        within the province of the jury, both as to credibility of witnesses and the
        weight of the evidence and as to the limits of the defense. Bigby, 892 S.W.2d
        at 878; see also Reyna v. State, 116 S.W.3d 362, 367 (Tex. App.—El Paso 2003,
        no pet.) (“The issue of insanity at the time of the offense lies within the
        province of the jury, and we will overturn its decision only where insanity
        is undisputed or resolved to one end of the spectrum outside the realm of
        discretion.”).

467 S.W.3d 622, 636-37 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).

b.      Discussion

        On the night of Halloween 2016, Dung; Dung’s mother, Oanh Thi-Nguyen; and

Dung’s daughter, five-month old Emily, were watching television in the home of Dung

and her husband, William, in rural Travis, Texas. Oanh recalled that Dung and William

had gotten into a fight over William’s purported marihuana usage; however, Dung was

acting normal. At some point that evening, Dung took Emily to a bedroom, closed and

locked the door to the bedroom, and attempted to change Emily’s diaper, despite

directives from both William and Child Protective Services (“CPS”) that she never be

allowed alone or unsupervised with Emily.            While in the locked bedroom, Dung


Thi-Zeluff v. State                                                                        Page 4
strangled Emily until she was dead. Afterwards, Dung sat with Emily in a rocking chair

until William came home and discovered the lifeless body of Emily. William began CPR

until medical personnel and law enforcement arrived.

        Among the law enforcement that arrived at the scene of the murder were Texas

Ranger Patrick Pena; Richard Aleman Jr., the then Falls County Constable, Precinct 3; and

Michael Ferguson, a Texas Game Warden in Falls County. Former Constable Aleman

recalled that, upon arriving at the scene, Dung “didn’t have a demeanor. Very, I call

stone-faced; just blank.” Game Warden Ferguson concurred, testifying that he saw Dung

sitting in a chair in the garage and that she “was real quiet and not saying a lot. What

little bit that I could, when I initially got on the scene, could understand, just real quiet

and asked where the baby was, I think.” Warden Ferguson spoke with Dung and

observed that she “was coherent, for sure; able to have a dialogue; and we were able to

speak through the translation line.” According to Warden Ferguson, Dung was unable

to remember what happened to Emily.

        Based on his investigation, Ranger Pena recounted that it was uncommon for the

door to the bedroom where Emily was killed to be locked. He also learned that, after

killing Emily, Dung removed two wedding rings and placed them on an end table

because “she no longer felt like a good mother or a wife.” This information led Ranger

Pena to believe that Dung knew that murdering Emily was wrong. Dung was placed

under arrest for the murder of Emily.


Thi-Zeluff v. State                                                                    Page 5
        A few days later, on November 3, 2016, Ranger Pena interviewed Dung. During

the interview, Dung explained, in great detail, how she killed Emily and described the

act as “evil.” Dung also indicated that she had urges or thoughts to harm Emily on

several other occasions. She also acknowledged having two abortions in the past because

she did not think she could take care of the children. Additionally, Dung noted that she

was involved in a car accident a few days before the killing and sustained minor injuries,

including a “goose egg” on her head. Ranger Pena found it interesting that Dung only

asked two questions during the three-hour interview—what the penalty was going to be

for her crime and the amount of money she needed to bond out of jail.

        Ranger Pena also recounted that, during the interview, Dung “never wiped a tear

from her eye. There was a box of tissue next to her that I provided to her. She never used

one. I never saw a tear. She just whined.” He believed that Dung was trying to fake

emotions. Ranger Pena noted that Dung did not look like someone who was depressed,

though she expressed some remorse. He did not see or hear anything indicating that

Dung did not know that killing her daughter was wrong. Ranger Pena based this

conclusion on the following facts:

        It’s kind of a hard turn.

              Before the Defendant took Emily to the bedroom, the Defendant’s
        mother stated that everything was normal, she was even playing with
        Emily inside the bedroom; before the grandmother walked back out of the
        bedroom, everything seemed normal.



Thi-Zeluff v. State                                                                 Page 6
               Another thing that concerned me was, during the interview, before
        she choked Emily, she told me—at first she told me she told Emily, but later
        on, she didn’t actually say it verbally but she thought it, she apologized to
        Emily because she’s about to act crazy.

               And again, this is just me speaking in my investigations. A truly
        crazy person doesn’t know they are about to act crazy. But she apologized
        to Emily just before doing it. That’s the second thing.

               The third thing is when Emily’s father came in the bedroom and
        found Emily dead and tried to perform CPR, the Defendant admitted to me
        she took her wedding rings off. So she knew what she did was wrong. She
        no longer felt like a mother and a wife.

                So in my investigative experience and opinion before, during, and
        after, she knew what she was doing.

                 ...

        And she did lock the door. And I learned, after conducting the other
        interviews, that that was very uncommon for the door to be locked.

Accordingly, Ranger Pena concluded that Dung intentionally killed her daughter and

that there was no indication that she did not know what she was doing.

        Oanh testified that CPS told Dung that she was not supposed to be alone with

Emily because they were afraid Dung would hurt Emily.1 The record reflects that Dung

had made numerous threats to harm herself and Emily in the past. These threats usually

coincided with fights Dung had with William. The record also shows that Dung had

attempted to commit suicide on a couple of occasions because she was depressed and



        1 Specifically, Oanh stated that Dung “is not normal” because “sometimes she can be on and
sometimes she can be off. Dung, you know, I know her. She under the pressure, very stressful, she cannot
control herself.”

Thi-Zeluff v. State                                                                              Page 7
often upset about her relationships with William or other men. These suicide attempts

resulted in Dung being hospitalized in 2010 at the Austin State Hospital and in 2016—

both of which resulted in Dung being released.

        Phuong Do and Thuy Duong Thi Do, Dung’s brother and sister, both testified

regarding Dung’s “up and down” behavior and the prescription drugs that Dung took.

Specifically, Dung took Senimet for Parkinson’s-like tremors and depression medicine;

however, prior to Emily’s death, Dung stopped taking her depression medicine because

she was breastfeeding Emily. Phuong and Thuy both recalled Dung’s prior suicide

attempts, describing one incident as Dung cutting her hand and throat and the other as

Dung ingesting a whole bottle of Tylenol. With both suicide attempts, Dung called either

a friend or the police to rescue her. In fact, according to William Derrick Johnson, Chief

Deputy for the Falls County Sheriff’s Office, Dung was well-known to police, as she

frequently called when she got depressed. Witnesses testified that this usually coincided

with troubles Dung had in her relationships with men. Thuy described Dung as having

depression problems when she gets in a relationship with a man and that Dung regularly

fought with her father because she likes to have things her way. In one incident, Dung

used her car to ram the gate of a man who broke up with her.

        Both Phuong and Thuy acknowledged that Dung admitted to killing Emily and

that Dung did not claim that she blacked out, hallucinated, heard voices, or saw things

that made it necessary to kill Emily. Rather, both Phuong and Thuy believed that Dung


Thi-Zeluff v. State                                                                 Page 8
killed Emily because Dung did not believe that she could be a good mother, William

purportedly threatened to take Emily away, and because Dung did not approve of

William’s nephew living with the couple.

        Chastity Brock, a Child Protective Services caseworker, recounted that, in August

2016, CPS received allegations that Dung had made threats to harm herself and Emily.

Brock later discovered that Dung “had made multiple threats to harm her child

throughout the course of her pregnancy and since the child was born in May.” When

Brock first arrived, Dung “was in the hospital for the threats that she had made to herself

and her child.” Brock noted that Dung was hospitalized for the first part of CPS’s open

case and that it was for “[s]uicide and homicidal ideations.” CPS went along with a

family safety plan put in place by William that prohibited Dung from being alone or

unsupervised with Emily.

        Brock also recalled that Dung had slight tremors, but Brock did not observe Dung

to be delusional or suffering from hallucinations. Brock did not see anything in the home

or glean from her conversations with Dung that made her think that someone was

suffering from a severe mental disease or defect. Brock emphasized to everyone involved

that Dung needed to be supervised at all times when she interacted with Emily.

        Dr. Robert Edward Cantu testified as Dung’s expert witness.          Dr. Cantu, a

psychiatrist, did an evaluation of Dung in March 2017. Dr. Cantu recounted Dung’s

medical history, including her use of Senimet for Parkinson’s symptoms and another


Thi-Zeluff v. State                                                                  Page 9
drug for depression. He also noted Dung’s hospitalization at the Austin State Hospital

in 2010 and her more recent hospitalization at Scott & White Hospital in 2016, when she

was eight months pregnant.          Dung’s 2016 hospitalization was due to William

complaining that Dung threatened him, attacked him with a knife, and made threats to

kill herself and her baby while hitting herself in the stomach. After giving birth, Dung

was hospitalized again in late August 2016, for threatening to kill herself and Emily;

however, she was released a day or two later because she denied saying those things.

Dung was ordered to follow up with psychiatry two weeks later.

        On September 1, 2016, imaging of Dung’s brain was done, and it revealed

abnormalities in Dung’s brain that are characteristic of Parkinson’s disease. Dr. Cantu

also spoke to Dung about the collision that transpired just prior to the killing. Dung told

Dr. Cantu that she intentionally drove her car off the road to kill herself, though she

denied this to other medical professionals. As a result of the collision, Dung was

prescribed Tylenol 3 with codeine, which is a narcotic that can cause people to “become

more depressed or more aggressive.” When asked about his general diagnosis for Dung,

Dr. Cantu stated the following:

        Okay. So in this letter, I outline what I think Ms. Zeluff’s psychiatric
        diagnoses are.

               And at that time, to an extent, I still do believe that she had severe
        major depressive disorder; she also had parkinsonian—Parkinson’s
        disease, and I believe that that was aggravating her depression and—and
        her ability to think clearly.


Thi-Zeluff v. State                                                                     Page 10
               I didn’t, at that time, put that I believe that she had side-effects from
        her Senimet that were also contributing to her state of mind on or about the
        offense.

               And I also believed at the time, again, of the offense, that she was
        suffering from postpartum depression and psychosis, which overlaid her
        regular depression and just made everything worse.

        Regarding Dung’s insanity defense, Dr. Cantu testified:

        So, with regard to—I—I believe that there’s very little doubt that she has
        several serious mental illness diagnoses.

              The second part of the statute has to do with whether or not the
        person knew that the conduct was wrong. Wrong’s defined in several
        ways. It’s clear, my record, from the record of the DPS people, that Ms. Zeluff,
        when asked, knew that the –killing her baby was criminally wrong.

                 ...

        And as I’ve mentioned, I believe that at the time of the offense, Ms. Zeluff
        was psychotic; specifically, that she was delusional. Because she told me
        and she has told other people in the record that she believed that because
        she couldn’t care for the baby, that the best option for the baby was to be
        dead.

(Emphasis added). However, Dr. Cantu did conclude that Dung could not appreciate the

moral subjective wrongness of killing Emily. He also clarified:

        Now, again, this doesn’t make sense if you’re not delusional. But, again, if
        in your delusion that you believe that the only option, the only possible
        thing to do is to kill your baby because you can’t take care of it, it does make
        sense to somebody who’s delusional, i.e., somebody who’s psychotic.

        He also acknowledged that, in the video of her confession to police, Dung

demonstrated how she choked Emily and stated that she locked the door of the bedroom,

so no one would interrupt or interfere with her. Dr. Cantu described the symptoms of
Thi-Zeluff v. State                                                                        Page 11
psychosis as being hallucinations, delusions, and/or disorganized thinking. He further

explained that disorganized thinking “is where one can’t put together their thinking well

enough to complete normal tasks.” However, on cross-examination, Dr. Cantu admitted

that nowhere in Dung’s medical records was she diagnosed with or complained about

having hallucinations or being delusional. And with regard to disorganized thinking,

Dr. Cantu conceded that, if Oanh was correct in that Dung could change Emily’s diaper

on the night of the killing, then Dung would not have had disorganized thinking on the

night in question. Rather, according to Dr. Cantu, Dung’s actions of taking Emily,

changing her diaper in another room, locking the door to the room, and killing Emily did

not sound like disorganized thinking. Dr. Cantu agreed that this sounded “like a plan

you start and you finish.”

        Dr. Cantu agreed that the medical record also contains notations that Dung’s

suicide attempts may be characterized as attention-seeking and that Dung was possibly

manipulating William. Indeed, some of Dung’s threats regarding Emily were made

because she was upset with William working all of the time and for moving the family

from Brenham, Texas. Furthermore, Dr. Cantu recognized that the medical records also

indicate that, in June 2016, Dung was put back on Senimet after having Emily and that

her doctors noted that she was doing better.

        Dr. William Lee Carter, a psychologist, testified that he did two separate

psychological examinations of Dung—one on August 7, 2017, and another on April 17,


Thi-Zeluff v. State                                                               Page 12
2018. Dung told Dr. Carter that she knew that she was not supposed to be alone with

Emily and that she decided to kill Emily while William was away from home because he

would stop her. Dung reiterated that she locked the door to the bedroom because she

was afraid of being stopped by her mother while killing Emily. Dung denied feeling

suicidal when she was alone in the bedroom with Emily. Dung admitted that she knew

that choking Emily by the neck would kill her and that the act of doing so was wrong.

After killing Emily, Dung “had no feeling at all” and made no attempt to try to revive her

in any way. Instead, Dung held Emily while sitting in a rocking chair. Dung explained

that she was not thinking anything at all at this time, and she denied wanting to die

herself. Dung expressed that she wanted to apologize to Emily, if she could speak to her

right now. And when Dr. Carter asked Dung why she was in jail, Dung stated that “she

knew she was in jail for killing her daughter.”

        After reviewing all of the medical records and the case record, including his

examinations of Dung, Dr. Carter formed the following opinion:

        My opinion is that before this act, she planned what she was doing; she
        knew what she was doing was wrong; and she knowingly killed her
        daughter, and she did so recognizing that she was breaking the law.

               Therefore, my opinion is that she was sane at the time of Emily
        Zeluff’s death.

                 ...

                There is no question whatsoever that she is a severely
        psychologically disturbed woman. I have no questions whatsoever about
        that issue.
Thi-Zeluff v. State                                                                Page 13
                 ...

              My opinion is that she has a personality disorder. I diagnosed a
        borderline personality disorder, which is a disorder regarding identity.
        You know, we all ask that question: Who am I?

                Individuals who have borderline personality disorder commonly
        have a lot of trauma and stress and so forth in their personal history. And
        I certainly had reason to believe she had a lot of trauma in her history, not
        only from her origins, living in poverty in a third-world country; coming
        over here being involved in a number of relationships, some of which were
        bad; losing her own daughter, frankly, is a form of trauma that I’m sure
        influences her right now.

              But as she asks that question: Who am I? She does not come up with
        good, palpable answers.

               People with borderline personality disorder oftentimes are suicidal,
        repeatedly. They oftentimes engage in acts of self-harm. They oftentimes
        engage in self-harm or erratic behavior as a manipulative means or as a way
        of overstating their emotional distress.

                 And so that’s what my sense here is about her.

               Borderlines do not have a lack of contact with reality. And I do not
        believe she has a lack of contact with reality.

        Based on the foregoing, we conclude that there was sufficient evidence from which

the jury could determine that Dung was aware at the time she murdered Emily that her

conduct was wrong. See TEX. PENAL CODE ANN. § 8.01(a); Ruffin, 270 S.W.3d at 592 (noting

that “wrong,” in the context of an insanity defense, means “illegal” by societal standards);

Bigby, 892 S.W.2d at 877-78 (stating that the insanity defense focuses on whether the

accused understood the nature of her action and whether she knew she should not do it);


Thi-Zeluff v. State                                                                     Page 14
see also McAfee, 467 S.W.3d at 639. Specifically, the evidence showed that Dung took the

precise actions of waiting until William left the house to take Emily into another bedroom,

lock the bedroom door to avoid interference, and strangle Emily. See Graham, 566 S.W.2d

at 951 (noting that the circumstances of the crime itself are important in determining the

mental state of the accused at the time of the commission of the offense); see also Ruffin,

270 S.W.3d at 591-92 (noting that Texas law presumes that a criminal defendant is sane

and intends the natural consequences of her actions). Afterwards, Dung removed her

wedding rings and indicated that she was not a good mother or wife. See Torres, 976

S.W.2d at 347-48 (holding that, in reaching its decision on insanity, the jury may consider

circumstantial evidence, including defendant’s demeanor before and after committing

crime, defendant’s attempts to evade police or conceal incriminating evidence,

defendant’s expressions of regret or fear of consequences of his actions, and any other

possible explanations for defendant’s behavior). The record also shows that Dung made

numerous threats to harm the baby when she had conflicts with William because she

liked to get her way. Furthermore, Dung admitted to numerous people, including Drs.

Cantu and Carter that it was wrong for her to kill Emily. Moreover, Dung asked Ranger

Pena, during the interview a few days after the killing, what the penalty was going to be

for her crime and the amount of money she needed to bond out of jail. See id.

        And while it appears that Dung is a severely, psychologically-disturbed woman

and that Dung has taken several prescribed drugs at varying times to treat her physical


Thi-Zeluff v. State                                                                 Page 15
and mental issues, we emphasize that mental disease or defect alone is not sufficient to

establish the affirmative defense of insanity and that the determination as to whether the

defense of insanity was proven is a decision that lies within the province of the jury and

will not be overturned unless “insanity is undisputed or resolved to one end of the

spectrum outside the realm of discretion.” Reyna, 116 S.W.3d at 367; see Bigby, 892 S.W.2d

at 878; see also Nutter, 93 S.W.3d at 132 (noting also that lack of memory is not enough to

establish insanity at the time of the offense). Additionally, we are not persuaded by

Dung’s insistence that Dr. Cantu’s testimony conclusively established her insanity

defense as a matter of law by virtue of him being both a psychiatrist and a medical

doctor.2 See Torres, 976 S.W.2d at 347 (“Expert testimony on the issue of appellant’s ability

to determine right from wrong does not establish insanity as a matter of law. In fact,




        2 We are also not persuaded by Dung’s reliance on Morgan v. State, 869 S.W.2d 388, 388-89 (Tex.
App.—Tyler 1993, no pet.). In Morgan, the Tyler Court of Appeals concluded that the defendant proved
the affirmative defense of insanity by a preponderance of the evidence based on the testimony of three
medical doctors with specialties in psychiatry and several relatives who noted that the defendant suffered
from severe mental disease, was “mentally sick,” “withdrawn,” “way out,” and, thus, could not know that
his conduct in shooting the victim was wrong. Id. at 388-39. The Morgan Court concluded that this
testimony outweighed the expert opinion of the State’s psychologist. Id. at 389.

         Unlike Morgan, Dung’s expert witness, Dr. Cantu specifically noted that the record shows that
Dung knew that killing Emily was “criminally wrong.” That was enough for the jury to conclude that
Dung understood the nature of her action and that she knew she should not have done it. See Ruffin v.
State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008); Bigby v. State, 892 S.W.2d 864, 877-78 (Tex. Crim. App.
1994); see also McAfee v. State, 467 S.W.3d 622, 639 (Tex. App.—Houston [1st Dist.] pet. ref’d). And to the
extent that Dr. Cantu’s testimony, as well as the testimony of Dung’s relatives, conflicts with the State’s
evidence, we note that such conflicts were within the province of the jury to resolve and that Dung’s
evidence does not so greatly outweigh the State’s contrary evidence that the verdict was manifestly unjust.
See Matlock v. State, 392 S.W.3d 662, 671-72 (Tex. Crim. App. 2013); Bigby, 892 S.W.2d at 878; Graham v. State,
566 S.W.2d 941, 943 (Tex. Crim. App. 1978); Reyna v. State, 116 S.W.3d 362, 367 (Tex. App.—El Paso 2003,
no pet.); Torres v. State, 976 S.W.2d 345, 347 (Tex. App.—Corpus Christi 1998, no pet.).

Thi-Zeluff v. State                                                                                   Page 16
while expert testimony may be helpful to a jury, the issue of insanity is outside the

purview of medical experts and should be left to the discretion of the trier of fact.” (citing

Graham, 566 S.W.2d at 943)).       Accordingly, we cannot conclude that the evidence

supporting Dung’s affirmative defense so greatly outweighs the State’s contrary evidence

that the jury’s verdict was manifestly unjust. See Matlock, 392 S.W.3d at 671-72. We

overrule her sole issue on appeal.

                                      II.    CONCLUSION

        We affirm the judgment of the trial court.




                                                  JOHN E. NEILL
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed July 3, 2019
Do not publish
[CRPM]




Thi-Zeluff v. State                                                                    Page 17
