                               NUMBER 13-07-171-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ROLAND C. PALACIOS,                                                             Appellant,

                                             v.

THE STATE OF TEXAS,                                                              Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas


                          MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

       Without a plea-bargain agreement, appellant, Roland Palacios, pleaded no contest

to the offense of burglary of a habitation with intent to commit aggravated assault. The trial

court sentenced him to sixty years’ imprisonment. In one issue, Palacios contends the trial

court abused its discretion in excluding evidence which showed he lacked the mens rea
necessary to commit the offense. We affirm.

                                     I. BACKGROUND

      Palacios was paroled to the home of his girlfriend, Hermilia Hinojosa, on June 29,

2005. He violated the terms of his parole and was sent to an intermediate-sanction facility

for drug rehabilitation. He was released on January 19, 2006. On January 21, he broke

into Hinojosa’s home. Palacios called her on her cell phone, requesting that she go home

so they could go out together. She refused. He then threatened to kill her, so she called

the police. Palacios destroyed everything in the house, then left.

      On February 5, 2006, Palacios called Ms. Hinojosa while she was at a restaurant

with her niece, Kassie, and daughter, Jovanna. He left her threatening messages that

frightened her. Kassie, who had been living with her son, Joey, at Hinojosa’s house, told

Hinojosa not to go home that night. She agreed and stayed with a friend. When Kassie

and Jovanna returned to Hinojosa’s home, they found Palacios standing outside the house.

Jovanna rushed inside and told Kassie to lock the door and take her baby to the back of

the house. Jovanna called “911" while Kassie hid the baby. Palacios kicked the door

down, and Kassie ran and hid. He searched the house, shouting for Hinojosa. Jovanna

screamed at him that Hinojosa was not there. He then threw a full twenty-four ounce can

of beer at Jovanna’s head. She ducked, and the can hit a computer. He continued to ask

Jovanna where her mother was, and she continued to tell him to leave. He then threw a

knife at her, but she ducked, and it missed.

      Palacios fled as two police officers arrived at the house. The officers stayed nearby

to wait for his return. Palacios returned to the house, but he fled again. The police were

able to find him a few houses away. The police officers tried to subdue him, but he

resisted. The officers had to use mace twice before he would settle down and get in their
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car. While in the police car, he continued to fight. He was eventually restrained.

       Palacios testified he did not remember any part of the incident on February 5th. He

stated he had been suffering from blackouts for days due to drugs and alcohol. Palacios

said he heard voices and that he drank and smoked crack to quiet them. Two psychiatrists

examined him, and both found him to be sane.

       Palacios was indicted for burglary of a habitation with intent to commit aggravated

assault.   At a pretrial hearing, the trial court heard Palacios’s motion to determine

admissibility of the reports of both psychiatrists. Palacios wanted to use the psychiatrists’

reports to show “diminished responsibility” to negate the mens rea element of intentionally

or knowingly. The trial court excluded the evidence, and Palacios pleaded no contest.

This appeal followed.

                                   II. STANDARD OF REVIEW

       We review the trial court's decision to admit or exclude evidence under an abuse

of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996);

Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Wilks v. State, 983 S.W.2d

863, 866 (Tex. App.–Corpus Christi 1998, no pet.). A trial court abuses its discretion if its

decision was arbitrary or unreasonable, Brown v. State, 960 S.W.2d 772, 778 (Tex.

App.–Dallas 1997, pet. ref'd), or if, given the record and the law, the decision fell outside

the zone of reasonable disagreement. See Benitez v. State, 5 S.W.3d 915, 918 (Tex.

App.–Amarillo 1999, pet. ref'd).

                                         III. ANALYSIS

       The first question this Court must answer is whether Palacios waived his right to

appeal. Because he pleaded no contest without a plea recommendation, the appellant can

only appeal: (1) jurisdictional defects; (2) the voluntariness of his plea; (3) an error that is
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not independent of and supports the judgment of guilt; and (4) potential error occurring

after the guilty plea. Perez v. State, 129 S.W.3d 282, 288 (Tex. App.–Corpus Christi 2004,

no pet.). Palacios claims the issue he is raising is not independent of and supports the

judgment of the trial court, and therefore, he has not waived it. See Young v. State, 8

S.W.3d 656, 667 (Tex. Crim. App. 2000). To show the issue raised is not independent of

the judgment, an appellant must show an evidentiary nexus between the error and the

judgment. See Sanchez v. State, 98 S.W.3d 349, 353 (Tex. App.–Houston [1st Dist.]

2003, pet. ref’d) (holding the guilty plea was not independent of the trial court’s ruling to

reveal the identity of a confidential informant because informant’s testimony was vital to

defense). Here, like Sanchez, the issue of Palacios’s state of mind goes directly to a

necessary element of his defense.         Therefore, we determine the issue was not

independent of the judgment and, therefore, was not waived.

       Next, we must determine whether the trial court abused its discretion in finding the

medical evidence inadmissible. Neither psychiatrist who evaluated Palacios found him to

be insane. Palacios is not raising an insanity defense but rather “diminished responsibility”

to negate the mens rea element. This defense has previously been recognized as a

defense, but only in limited circumstances. Jackson v. State, 160 S.W.3d 568, 574 (Tex.

Crim. App. 2005). Moreover, the evidence can still be excluded if the probative effect is

substantially outweighed by the danger of unfair prejudice. See TEX . R. EVID . 403 (Vernon

2003); Jackson, 160 S.W.3d at 574.         Palacios’s evidence would have to show the

blackouts were caused by a mental illness combined with the drugs because voluntary

intoxication alone is not a defense to negate the element of mens rea. Tijerina v. State,

578 S.W.2d 415, 416-17 (Tex. Crim. App. 1979); see also Wilson v. State, No. 13-04-

00298-CR, 2007 WL 1559104, at *2 (Tex. App.–Corpus Christi, May 21, 2007, pet dism’d)
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(mem. op., not designated for publication).

       One of the psychiatrists, Dr. Martinez, said the blackout was “theoretically and

clinically possible.” He further testified that, if the blackouts occurred, the primary cause

was voluntary intoxication. Dr. Martinez explained that the long blackouts described by

Palacios are not typical of rage or emotionally induced blackouts, but are more commonly

attributed to substance abuse. There was no evidence of psychosis, mania, or any mental

illness that would cause blackouts. The chance of confusing the jury is great. The

testimony could confuse a reasonable jury into believing Palacios was raising an insanity

defense based on voluntary intoxication, which is not allowed. See TEX . PENAL CODE ANN .

§ 8.04(a) (Vernon 2003). Because the probative value is slight and there is a high

possibility of confusing the jury, the trial court did not abuse its discretion when it chose to

exclude the mental-illness evidence. See TEX . R. EVID . 403. The trial court’s decision to

not admit the mental illness evidence was not an abuse of discretion.

                                       IV. CONCLUSION

       We overrule Palacios’s sole issue. We affirm.




                                                   ROSE VELA
                                                   Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 17th day of July, 2008.

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