                                 MEMORANDUM OPINION
                                        No. 04-10-00784-CR

                                        Alan Dennis GODIN,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009CR2580
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 12, 2011

AFFIRMED

           Alan Dennis Godin appeals his murder conviction. Godin challenges the sufficiency of

the evidence to support the jury’s finding that he had the requisite culpable mental state. Godin

also challenges the sufficiency of the evidence to support the jury’s rejection of his affirmative

defense of insanity. Finally, Godin contends the trial court erred in denying his requested jury

charge on the lesser included offense of criminally negligent homicide. We affirm the trial

court’s judgment.
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                                          BACKGROUND

         The evidence is undisputed that Godin walked into a college library where he worked and

shot a co-worker, Devin Zimmerman, who died a short time later. Tracey Mendoza was the

Dean of Libraries who hired Godin as an adjunct librarian approximately two years before the

shooting. Godin was a part-time employee but sought a full-time position. Zimmerman was

hired as a full-time reference librarian and instruction coordinator after Godin was hired. Godin

did not apply for Zimmerman’s position because he was not qualified. Mendoza testified that

Zimmerman was well-respected and had excellent technical skills. Mendoza described Godin’s

technical skills as rudimentary.

         Approximately one year before the shooting, Godin and Zimmerman had a disagreement

about the interlibrary loan process. Godin reported the disagreement to Mendoza. Mendoza

testified that Godin was upset by Zimmerman’s approach to the process.

         At some point in time, the library started a chat service that allowed students to chat

reference questions with the library staff. The service required the library staff to change their

status when they were away from the computer. Mendoza recalled Godin being upset with

Zimmerman for checking to make sure Godin changed his status when he was away from the

computer.

         Ten days before the date of the shooting, Godin went into Mendoza’s office in an agitated

state.   Godin stated that he had an argument with Zimmerman, and he felt humiliated by

Zimmerman in front of the entire library. Godin showed Mendoza an email Zimmerman had

sent him after the incident stating “too much caffeine, my bad.”




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       Mendoza testified that the shooting was senseless. Mendoza recalled the arguments

between Godin and Zimmerman only when she was trying to make sense of the shooting. She

admitted that she had described the argument preceding the shooting as “no big deal.”

       Robert Vaughn, who worked at the library for six months before the shooting, testified

that Godin thought Zimmerman was trying to get rid of him. Vaughn described the chat room

incident in which Zimmerman had sent Godin a reference question while Godin was away from

his computer. Godin found out that Zimmerman had sent the question and believed Zimmerman

did not have the right to check up on him.

       Vaughn also recalled the confrontation ten days before the shooting which also involved

the interlibrary loan process. Vaughn described the confrontation as “low key,” but stated there

was obviously a difference of opinion.        Vaughn also believed Godin was threatened by

Zimmerman being much younger. The Saturday before the shooting, which occurred on a

Monday, Godin asked Vaughn if Mendoza had spoken with him about the confrontation. That

same day, Godin told Vaughn about a movie where a man, who was about to be shot, told the

shooter, “You’ll never get away with it.” Godin told Vaughn the shooter replied, “I don’t want

to get away with it. I just want to do it.”

       Vaughn was working with Zimmerman the day of the shooting. Vaughn saw Godin walk

in front of Zimmerman, put on ear protection, and start shooting. The medical examiner testified

that Zimmerman was shot five times.

       One of the officers at the scene placed Godin in handcuffs and waited with him in the

campus police office.      Godin was not being questioned but, while waiting, spontaneously

remarked, “I guess I really messed up.” When the officer did not respond, Godin further

remarked, “I don’t care.” The officer testified that he smelled alcohol on Godin’s breath.



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Another officer at the scene recalled Godin telling him, “I know handcuffs are meant for

punishment, and I deserve to be punished for what I did.”

       A student who witnessed the shooting testified that Godin fired the first shot with one

hand on the gun. She noticed Godin recoil after the shot. Godin then repositioned himself into a

better stance and used both hands to shoot the remaining shots.

       Christine Crowley, Godin’s ex-wife, testified that Godin had an incident in 2006 which

was diagnosed as trans-global amnesia (“TGA”). Godin had worked all day putting together a

BBQ pit which required multiple trips to the store. Godin later repeatedly asked Crowley about

the same ATM receipt within a short period of time. When Godin and Crowley walked through

the living room to go to bed, Godin saw the BBQ pit, became agitated, and asked where it came

from. Crowley took Godin to the hospital the following day, and the incident was diagnosed as

TGA.

       Crowley recalled Godin telling her about the disagreement with Zimmerman, but she

thought it had blown over. Crowley described Godin as more embarrassed and devastated by the

disagreement than angry. Crowley testified that she believed the shooting was another TGA

incident because Godin did not remember it. Crowley testified that Godin had struggled with

alcohol abuse in the past. Crowley identified a box full of herbal supplements Godin would take

to improve his health. Crowley testified that Godin took some time to reorient after the 2006

incident and was still foggy the following morning. The only medication Godin was prescribed

following the 2006 incident was high blood pressure medication.

       Dr. Michael R. Arambula performed a forensic exam of Godin and testified that the

shooting was another TGA incident.       Dr. Arambula testified that Godin attempted to self-

medicate his illnesses using herbal medicines, which likely aggravated his depression. Dr.



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Arambula testified that some of the risk factors for TGA were migraine headaches, high blood

pressure, and some kind of central nervous system disease, and Godin had all of these risk

factors. Dr. Arambula testified that during a TGA incident, the person is in a state of automatism

where right and wrong do not matter. Dr. Arambula stated that he was unaware of the timing of

the incident where Godin told Vaughn about the movie scene. Dr. Arambula admitted that he

would have factored this into his analysis if he had known the timing. Dr. Arambula also

admitted that regaining full memory after a TGA episode usually takes several hours. Dr.

Arambula did not believe Godin was fully aware of the shooting, however, until after he arrived

at the magistrate’s office several hours later. Dr. Arambula testified that Godin likely made the

statements to the officers at the scene based on what he observed, not based on his awareness at

the time of the shooting. Dr. Arambula admitted that TGA is a rare disease and has a low risk of

recurrence.

       Dr. Brian Skop testified that TGA only affects a person’s ability to form and retain

memories during an episode and does not affect a person’s cognitive abilities in understanding

what the person is doing. Dr. Skop testified that even if Godin had experienced another TGA

episode, he was still making conscious decisions; he just would not remember his actions. Dr.

Skop testified that TGA does not affect moral culpability or knowledge. Dr. Skop did not

believe that Godin was suffering from TGA at the time of the shooting. Dr. Skop compared the

incident in 2006 with the shooting, noting Godin’s wife was a witness to his memory loss in

2006, whereas there were no witnesses to confirm Godin was suffering from memory loss before

the shooting. Moreover, the evidence established that Godin remained in a confused state in

2006 for a long period of time. Immediately after the shooting, however, Godin did not appear

confused, especially given the statements he made to the police.



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                                                  SUFFICIENCY

         In evaluating the legal sufficiency of the evidence to support a criminal conviction, “we

consider all the evidence in the light most favorable to the verdict and determine whether, based

on that evidence and reasonable inferences therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). “Viewing the evidence ‘in the light most favorable to the verdict’ under

a legal-sufficiency standard means that the reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Brooks v. State, 323 S.W.3d 893, 899

(Tex. Crim. App. 2010) (emphasis in original).

         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) (West 2011); see

also Meraz v. State, 785 S.W.2d 146, 150 (Tex. Crim. App. 1990); Lantrip v. State, 336 S.W.3d

343, 346 (Tex. App.—Texarkana 2011, no pet.). Where a defendant bears the burden of proof

on an affirmative defense such as insanity, the standard of review is whether, after considering

all the evidence relevant to the issue at hand, the judgment is so against the great weight and

preponderance of the evidence as to be manifestly unjust. 1 Meraz, 785 S.W.2d at 155; Lantrip,

336 S.W.3d at 346.


1
  The State suggests in its brief that the sufficiency standard of review relating to affirmative defenses should be
reconsidered based on the Texas Court of Criminal Appeals’ holding in Brooks that the “legal-sufficiency standard
is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” 323 S.W.3d at
895. Because we hold the evidence is sufficient even under the factual sufficiency standard, we do not address this
contention. But see id. at 924 & n.67 (Cochran, J., concurring) (suggesting Meraz standard would still be
applicable).



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Both of Godin’s sufficiency arguments rely on Dr. Arambula’s testimony for support. The jury,

however, was free to reject Dr. Arambula’s testimony in favor of Dr. Skop’s.               Moreover,

rejecting Dr. Arambula’s testimony is not against the great weight and preponderance of the

evidence. In addition to the differing expert opinions, the jury heard the testimony regarding

Godin’s anger toward Zimmerman. The jury also heard Vaughn’s testimony regarding Godin’s

reference to the movie involving a shooting two days prior to the actual shooting. The jury

further heard testimony about Godin consciously repositioning himself after the first shot and

about the statements Godin made immediately after the shooting. Finally, the jury heard the

testimony of the differences between the TGA episode in 2006 and the shooting in 2008. After

reviewing all of the evidence, we hold the evidence is legally sufficient to support the jury’s

finding of guilt. We further hold that the jury’s rejection of Godin’s insanity defense was not so

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

                                   LESSER-INCLUDED OFFENSE

       “The determination of whether a lesser-included-offense instruction requested by a

defendant must be given requires a two-step analysis: (1) Is the requested charge for a lesser-

included offense of the charged offense? (2) Is there trial evidence that supports giving the

instruction to the jury?” Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). Under the

second prong of the analysis, the reviewing court must “determine if there is some evidence in

the record which would permit a jury to rationally find that, if the defendant is guilty, he is guilty

only of the lesser-included offense.” Id. at 145. “The evidence must establish the lesser-

included offense as a valid, rational alternative to the charged offense.” Id.

       A person acts with criminal negligence if the actor ought to be aware of a substantial and

unjustifiable risk that a particular result will occur, but fails to perceive that risk. See TEX.



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PENAL CODE ANN. § 6.03(d) (West 2011). Godin argues that the trial court erred in overruling

his request for the lesser included offense of criminally negligent homicide based on the large

amount of over-the-counter herbal medications and vitamin supplements he took.              Godin

contends that if he is culpable for the killing, “he is culpable through criminal negligence in not

getting the proper medical attention and in taking the herbals and the supplements.”

       Godin’s argument, however, does not even address how the herbal medications and

supplements affected his ability to perceive the risk of killing Zimmerman. More importantly,

there was no evidence that the herbal medications and supplements actually affected his

awareness.   At trial, the testimony pertaining to the herbal medications and supplements

appeared to be directed at Godin choosing to self-medicate the illnesses which Dr. Arambula

listed as factors for TGA.    The testimony was not directed at the herbal medications and

supplements affecting Godin’s awareness of risks. Accordingly, the evidence at trial did not

establish criminally negligent homicide “as a valid, rational alternative to the charged offense.”

Rice, 333 S.W.3d at 145.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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