                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00065-CR

BRIDGETT LAVELL ROBERSON,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 09-00811-CRF-272


                          MEMORANDUM OPINION


      Bridgett Lavell Roberson was convicted, after a bench trial, of assault on a public

servant and sentenced to 8 years in prison. See TEX. PENAL CODE ANN. § 22.01(b)(1)

(West 2011).   Because there was evidence supporting the trial court’s rejection of

Roberson’s insanity defense and because Roberson’s issue regarding judicial cross-

examination was not preserved, the trial court’s judgment is affirmed.

                                     BACKGROUND

      Roberson was in the Brazos County Jail for an unrelated offense. She was placed

in a “violent cell” and had been there for at least one shift of the jailers. While jail
officers were trying to place Roberson in a restraint chair, Roberson slapped Officer

Joan Burns and bit Officer D Anne Hudson. Roberson bit a chunk of flesh out of

Hudson’s arm. She openly chewed and then swallowed the flesh so that Hudson could

see. The wound required Hudson to go to the hospital for extensive treatment. At trial,

Roberson pled not guilty by reason of insanity. The trial court rejected Roberson’s

insanity plea.

                                     INSANITY DEFENSE

        Roberson argues in her first issue that the evidence was legally insufficient to

support the trial court’s rejection of her insanity defense.

        Texas law excuses a defendant from criminal responsibility if the defendant

proves the affirmative defense of insanity by a preponderance of the evidence. TEX.

PENAL CODE ANN. §§ 2.04(d); 8.01(a) (West 2011). The test for determining insanity is

whether, at the time of the conduct charged, the defendant-as a result of a severe mental

disease or defect-did not know that the conduct was "wrong." Ruffin v. State, 270

S.W.3d 586, 592 (Tex. Crim. App. 2008); TEX. PENAL CODE ANN. § 8.01(a) (West 2011).

Under Texas law, "wrong" in this context means "illegal." Bigby v. State, 892 S.W.2d 864,

878 (Tex. Crim. App. 1994).

        The issue of insanity is not strictly medical; it also invokes both legal and ethical

considerations. Bigby, 892 S.W.2d at 877. The question of insanity should focus on

whether a defendant understood the nature and quality of the action and whether it

was an act she ought to do. Bigby, 892 S.W.2d at 878 (citing Zimmerman v. State, 215

S.W. 101, 105 (1919) (on rehearing)). By accepting and acknowledging her action is

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"illegal" by societal standards, a defendant understands that others would believe her

conduct is "wrong." Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994).

        Roberson contends that the proper standard of review when determining

whether the evidence is legally insufficient to support the trial court’s rejection of her

insanity defense is the same standard that is applied in civil cases.                     That is, the

reviewing court must first examine the record for evidence that supports the negative

“finding” while ignoring all evidence to the contrary, and if no evidence supports the

negative “finding,” the entire record is examined to determine whether it establishes the

contrary proposition as a matter of law. Cleveland v. State, 177 S.W.3d 374, 387 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d); Howard v. State, 145 S.W.3d 327, 333-334

(Tex. App.—Fort Worth 2004, no pet.). See Sterner v. Marathon Oil Co., 767 S.W.2d 686,

690 (Tex. 1989). The State cites to a different standard of review, but does not contest

Roberson’s version of the standard. Actually, the standard cited by the State is the

factual sufficiency standard.         Roberson’s issue is one of legal insufficiency.               We

conclude that the legal sufficiency standard as described by Roberson is the correct

standard of review, and we will review the evidence in light of that standard. Smith v.

State, ___ S.W.3d. ___, 2011 Tex. App. LEXIS 2426 (Tex. App.—Houston [1st Dist.] Mar.

31, 2011, no pet. h.) (publish); See Moranza v. State, 913 S.W.2d 718, 723 (Tex. App.—

Waco 1995, pet. ref'd).1



1There is some question whether Brooks in some manner changed the standard of review on issues the
defendant must prove by a preponderance of the evidence, such as insanity. We believe Brooks does not
change the standard in such cases. See Bernard v. State, ___ S.W.3d. ___, 2011 Tex. App. LEXIS 2693 (Tex.
App.—Houston [14th Dist.] Apr. 12, 2011, no pet. h.) (publish).

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           Before the incident, Roberson had been placed in the “violent cell,” but she kept

trying to escape when the jail officers would check on her. Intermittently, Roberson

would “holler and scream” and then would stop and ask questions. If she did not get

the answer she wanted, Roberson would start screaming again. After the incident,

Roberson apologized to Hudson when Hudson returned from the hospital. A day or so

later, Roberson told Officer Burns, that she remembered hitting Burns in the face and

would do it again if she had the opportunity.

           After treatment at the Austin State Hospital for about two weeks, Roberson

returned to the Brazos County Jail, and during a confrontation in which other inmates

were trying to make Roberson behave, Roberson threatened that she would bite an

inmate and an officer again if she had to. Roberson was also heard singing, “I bit the

sheriff but I didn’t shoot the deputy.” The next time Hudson saw Roberson, Roberson

stated to her, “I know you. You tastes good.” Additionally, when she learned that her

charge associated with this incident prevented her from returning to Austin State

Hospital, Roberson initially became angry and said that she could “do the time.” But

when it was explained to her that her actions in jail could impact her sentence,

Roberson apologized and promised to improve her behavior. None of the officers who

testified at Roberson’s trial ever had difficulty communicating with Roberson. Further,

the court-appointed psychologist stated that Roberson may have known her action was

illegal.

           After reviewing the record, we find that there is ample evidence to support the

trial court’s rejection of Roberson’s insanity defense.      Thus, under the standard of

Roberson v. State                                                                     Page 4
review cited by Roberson, we need not review the entire record to determine whether

insanity is established as a matter of law. Roberson’s first issue is overruled.

                             JUDICIAL CROSS-EXAMINATION

        Roberson argues in her second issue that the trial court abused its discretion by

subjecting Roberson to judicial cross-examination during the punishment phase of the

trial. Roberson did not object to the questioning by the trial court but contends on

appeal that the questioning was fundamental error because the trial court abandoned its

neutral and detached role; and thus, no objection was required.

        Texas Rule of Appellate Procedure 33.1 provides that, in general, as a

prerequisite to presenting a complaint for appellate review, the record must show a

timely, specific objection and a ruling by the trial court. TEX. R. APP. P. 33.1. See Layton

v. State, 280 S.W.3d 235, 238 (Tex. Crim. App. 2009); Neal v. State, 150 S.W.3d 169, 175

(Tex. Crim. App. 2004).       Unpreserved error may be reviewed if the error is a

fundamental error that affects a defendant's substantial rights. TEX. R. EVID. 103(d);

Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993). However, there are few

rights that must be affirmatively waived and may therefore be raised for the first time

on appeal. Marin, 851 S.W.2d at 280. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim.

App. 2002) (“All but the most fundamental rights are thought to be forfeited if not

insisted upon by the party to whom they belong.”)

        Roberson took the stand to testify during punishment.            The trial court’s

questioning took place after Roberson’s counsel passed her as a witness and is as

follows.

Roberson v. State                                                                     Page 5
        Q.      Ms. Roberson I have a question for you.

        A.      Yes, sir.

        Q.      There was testimony in your trial that about a month after this
                incident when Officer Hudson came back on to the job and you
                were back from ASH that you saw her and said, “I remember you.
                You taste good.”

        A.      No, Sir.

        Q.      Do you remember saying that?

        A.      No, sir, I don’t.

        Q.      You would have been on your medication then. Is that correct.

        A.      I wasn’t on my medication.

        Q.      After you came back from ASH?

        A.      They give me my medication at ASH.

        Q.      They didn’t give you medication at ASH?

        A.      They did. They give me medication at ASH.

        Q.      You don’t believe that you said that at that time?

        A.      I heard it.

        Q.      “I remember you. You taste good.”

        A.      Someone said I said that. I don’t know. Yes, sir.

        It is clear from this record that the questions addressed to Roberson were for the

purpose of clarifying an issue before the court and that the trial court during the

questioning maintained a neutral and detached role. Thus, an objection was required.




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See Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978). Accordingly, Roberson’s

second issue is not preserved and is overruled.

                                     CONCLUSION

        Having overruled each of Roberson’s issues on appeal, we affirm the judgment

of the trial court.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 15, 2011
Do not publish
[CR25]




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