                                 NO. 07-09-00323-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                  AUGUST 19, 2010


                             ROCKY A. HILL, APPELLANT

                                          v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2008-419,474; HONORABLE CECIL G. PURYEAR, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       OPINION

      Appellant, Rocky A. Hill, entered a plea of guilty to four counts of aggravated

robbery1 without benefit of any plea bargain. After hearing the punishment evidence,

the trial court assessed appellant’s punishment at confinement in the Institutional

Division of the Texas Department of Criminal Justice for a period of 20 years on each

count. Appellant appeals this judgment. We affirm.




      1
          See TEX. PENAL CODE ANN. § 29.03(a)(3) (Vernon 2003).
                               Factual and Procedural Background


       Appellant presents a single issue for our consideration.         Because the issue

raised by appellant does not touch upon the legal or factual sufficiency of the evidence

to support the convictions, we will limit our recitation of the facts to those that are

germane to the issue.


       Appellant was indicted on four counts of aggravated robbery on March 25, 2008.

On July 9, 2008, appellant’s trial counsel filed a motion suggesting appellant’s

incompetency to stand trial, and requesting that the trial court enter an order for the

examination of appellant by a competent expert. The trial court entered an order to

have appellant examined by Dr. Robert Morgan to determine appellant’s competency to

stand trial.2   Appellant was examined by Dr. Robert Morgan and Dr. Lucas Shaw.

Based on the examination, the doctors reported back to the trial court that appellant was

competent to stand trial. Subsequent to the competency examination, appellant’s trial

counsel filed a request to have appellant examined regarding the issue of an insanity

defense.3 On October 29, 2008, the trial court ordered a second examination by Dr.

Morgan on the issue of competency to stand trial. Notwithstanding the trial court’s

order, Dr. Morgan examined appellant concerning insanity on July 28, 2009. The report

of this examination was filed with the district clerk’s office on August 5, 2009.


       On August 17, 2009, appellant entered guilty pleas, to each of the four counts of

aggravated robbery. After receiving appellant’s guilty pleas the trial court ordered a pre-

       2
           See TEX. CODE CRIM. PROC. ANN. ch. 46B. (Vernon Supp. 2009).
       3
           See TEX. CODE CRIM. PROC. ANN. ch. 46C. (Vernon 2006).
                                              2
sentence investigation4 and set the hearing on punishment for August 31, 2009. During

the punishment hearing, both Dr. Morgan and Dr. Shaw testified about the results of the

competency examination and the examination conducted for purposes of an insanity

defense. Each doctor testified that appellant was competent to stand trial and that, at

the time of commission of the indicted offenses, the appellant “was not suffering from a

mental disease or defect such that he did not know that his conduct was wrong.” Both

doctors did testify that appellant suffered from various mental health issues ranging

from psychotic disorder not otherwise specified, poly-substance dependence, and

malingering. Appellant’s family also presented testimony regarding appellant’s apparent

mental health issues.     After hearing all of this evidence, the trial court sentenced

appellant to four concurrent 20 year sentences.          It is from these judgments that

appellant appeals.


       Appellant presents a single issue alleging that “the trial court abused its

discretion in failing to give due weight and consideration to the mental disposition of the

[appellant] and the possible effect of not having available the diagnosis of the

unclassified psychosis to inform its determination of the level of punishment to assess.”

This issue is multifarious, at best, and makes it difficult for the Court to determine what

action the trial court took or failed to take that led to appellant’s rights being violated or

the entry of an erroneous judgment. See TEX. R. APP. P. 38.1(f).5 However, we will

consider the issue raised in light of the brief filed and try to determine, with reasonable


       4
           See TEX. CODE CRIM. PROC. ANN. art. 42.12(9) (Vernon Supp. 2009).
       5
        Further reference to the Rules of Appellate Procedure will be by reference to
“Rule ___.”
                                              3
certainty, the alleged error of which appellant complains. See Stults v. State, 23 S.W.3d

198, 205 (Tex.App.—Houston [14th Dist.] 2000, pet. ref’d).


       Appellant appears to argue that, based on the evidence presented during the

punishment hearing, the trial court had a duty to stop the punishment hearing on its own

motion, and order appellant be further examined for purposes of an insanity defense.

Additionally, appellant appears to contend that this court should change the law in the

State of Texas to recognize “irresistible impulse” as a defense to prosecution under the

provisions of the insanity defense. We find no error in the procedure followed by the

trial court and, therefore, we will affirm the trial court’s judgment.


                                Raising the Insanity Defense


       A criminal defendant who desires to raise the insanity defense does so by

following the guidelines set forth in chapter 46C of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. ch. 46C. Under Texas law, insanity is an

affirmative defense to prosecution. See TEX. PENAL CODE ANN. § 8.01 (Vernon 2003),

Martinez v. State, 867 S.W.2d 30, 34 (Tex.Crim.App. 1993). Under the current statutory

scheme, a criminal defendant is required to file a notice of intent to raise an insanity

defense at least 20 days before the case is set for trial. See TEX. CODE CRIM. PROC.

ANN. art. 46C.051(b)(2).6 This process must be met or the criminal defendant will not be

allowed to introduce evidence on the issue of insanity, absent good cause for failure to

give the required notice. See art. 46C.052.

       6
          Further reference to the Texas Criminal Procedure Code shall be by reference
to “art. ___.”

                                               4
       In the case before the Court, appellant’s counsel did not give the required notice.

The record reflects that a report of the doctors’ second examination of appellant was

filed in the district clerk’s office on August 5, 2009. This is within the 20 day period of

the statute. See art. 46C.051(b)(2). However, appellant’s trial counsel did not seek

either a continuance or a ruling that good cause existed for not giving the requisite 20

day notice. Whether or not counsel should have done either is not an issue before this

Court. Simply speaking, any claimed error relating to the trial court’s failure to consider

evidence of appellant’s insanity defense was not preserved for our review. See Rule

33.1(a)(1)(A).


       As to appellant’s contention that the trial court should have sua sponte stopped

the punishment hearing upon receiving evidence of appellant’s mental health issues,

appellant has presented no authority for that proposition. Although appellant likens that

procedure to the procedure adopted for determining the competency of an individual to

stand trial, such comparison is without any authority.7 In fact, in ruling on the issue of

the trial court’s duty to sua sponte order an examination for purposes of an insanity

defense under the previous statute, our sister court has held that, since no notice was

filed, there was no issue of insanity before the trial court and the trial court had no duty

to sua sponte order any type of psychiatric examination. See Gomez v. State, Nos. 14-

       7
        Most of appellant’s argument regarding the sua sponte duty of the trial court is
premised upon the proposition that “irresistible impulse” should be a part of the insanity
defense in the State of Texas. However, “irresistible impulse” is not now, nor has it ever
been, recognized as a part of the affirmative defense of insanity by the jurisprudence of
the State of Texas. See Freeman v. State, 317 S.W.2d 726, 730 (Tex.Crim.App. 1958).
For this court to include such a doctrine into the affirmative defense doctrine of insanity
would involve this Court making the law and not simply insuring that the law is followed.
See Rodriguez v. State, 953 S.W.2d 342, 353 (Tex.App.—Austin 1997, pet. ref’d) (citing
Turner v. Cross, 18 S.W. 578, 579 (1892)). This we cannot do.
                                             5
99-00465-CR & 14-99-00466-CR, 2001 Tex.App. LEXIS 2094, at *9-*12 (Tex.App.—

Houston [14th Dist.] Mar. 29, 2001, pet. ref’d) (not designated for publication). We agree

with the Gomez court, and hold that the trial court has no duty to sua sponte stop the

punishment hearing to order a psychiatric examination for purposes of an insanity

defense when no timely notice of intent to pursue such a defense has been given.

Accordingly, appellant’s issue as to the sua sponte duty of the trial court is overruled.


                                            Conclusion


       Having overruled appellant’s contention, the judgment of the trial court is

affirmed.


                                                         Mackey K. Hancock
                                                              Justice


Publish.


Campbell, J., concurring.




                                             6
