AFFIRM; and Opinion Filed January 21, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-01354-CR

                              LAURA DELACRUZ, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 291st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F08-24680-U

                                          OPINION
                       Before Justices Francis, Lang-Miers, and Fillmore
                                  Opinion by Justice Fillmore

       A jury convicted Laura Delacruz (Laura) of murder and sentenced her to thirty years’

confinement. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). In two issues, Laura

asserts (1) the jury’s rejection of her insanity defense was so against the great weight and

preponderance of the evidence as to be manifestly unjust, and (2) the trial court erred by not

permitting her to introduce evidence supporting her insanity defense. We affirm the trial court’s

judgment.

                                         Background

       Marilyn Delacruz (Marilyn) died from gunshot wounds, and her daughter, Laura, was

indicted for Marilyn’s murder. Laura pleaded not guilty and raised the affirmative defense of
insanity. A jury found Laura guilty of murder and sentenced her to thirty years’ imprisonment.

Laura appeals her conviction.

                                                   Sufficiency of the Evidence

           Laura contends she was insane at the time of the offense. In her first issue, Laura asserts

the jury’s rejection of her insanity defense was against the great weight and preponderance of the

evidence.

                                                          Standard of Review

           In the factual-sufficiency review of a rejected affirmative defense, “the defendant is

asserting that, considering the entire body of evidence, the jury’s adverse finding on [her]

affirmative defense was so ‘against the great weight and preponderance’ of that evidence to be

manifestly unjust.” Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013) (quoting

Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990)). 1 In a factual-sufficiency review

of a rejected affirmative defense, we review the entirety of the evidence in a neutral light, but 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.; see also Meraz, 785

S.W.2d at 154. 2 Whether the affirmative defense of insanity at the time of an offense excuses

criminal responsibility lies in the province of the jury, not only as to the credibility of the

witnesses and weight of evidence, but also as to the limits of the defense itself.                                               Graham v.

State, 566 S.W.2d 941, 952 (Tex. Crim. App. 1978); see also TEX. CODE CRIM. PROC. ANN. art.

38.04 (West 1979). An appellate court may sustain a defendant’s factual-sufficiency claim “only

if, after setting out the relevant evidence and explaining precisely how the contrary evidence

     1
        Appellant’s claim is not technically one of factual insufficiency. Matlock, 392 S.W.3d at 670 n.29. “[S]he is really arguing that[she] had
offered so much evidence in support of [her] affirmative-defense claim and the State offered so little evidence rebutting [her] defense, that the
jury’s rejection of [her] affirmative defense is against the great weight and preponderance of the evidence.” Id.
     2
       See also Gillam v. State, No. 05-11-01334-CR, 2013 WL 1628386, at *13 (Tex. App.—Dallas Apr. 16, 2013, pet. ref’d) (not designated
for publication).



                                                                      –2–
greatly outweighs the evidence supporting the verdict, the court clearly states why the verdict is

so much against the great weight of the evidence as to be manifestly unjust, conscience-

shocking, or clearly biased.” Matlock, 392 S.W.3d at 671.

                                          Applicable Law

       The affirmative defense of insanity excuses a defendant from criminal responsibility even

though the State has proven every element of the offense beyond a reasonable doubt. Ruffin v.

State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008). A defendant is presumed to be sane and

presumed to have intended the natural consequences of her actions. Id. at 591. A defendant

asserting an insanity defense has the burden to prove by a preponderance of the evidence that at

the time of the conduct charged, “as a result of severe mental disease or defect,” she did not

know her conduct was wrong. See TEX. PENAL CODE ANN. §§ 2.04(d) (West 2011) (if issue of

existence of an affirmative defense is submitted to the jury, the court shall charge that defendant

must prove the affirmative defense by a preponderance of evidence); 8.01(a) (West 2011);

Ruffin, 270 S.W.3d at 592. In the context of an insanity defense, conduct is “wrong” if it is

“illegal.” Ruffin, 270 S.W.3d at 592. If a defendant knows society considers her conduct illegal,

she understands the conduct is “wrong” and she is not insane, even though she may think due to

her mental condition that the conduct is morally justified.         Id.   Expert testimony, even if

uncontradicted, does not establish insanity as a matter of law. Brooks v. State, 719 S.W.2d 259,

262 (Tex. App.—Waco 1986, pet. ref’d). While expert testimony may be helpful to a jury, the

issue of insanity is not strictly medical; the ultimate issue of criminal responsibility is beyond the

province of medical experts and must be left to the discretion of the trier of fact. Graham, 566

S.W.2d at 949. The circumstances of the offense, the life experiences of the accused, and her

actions before and after the crime are relevant in determining sanity at the time of the offense.

Ross v. State, 153 Tex. Cr. 312, 220 S.W.2d 137, 139 (1949).

                                                 –3–
                                            Evidence

       At about 4:30 p.m. on June 28, 2008, Laura, who was twenty-six years of age, shot

Marilyn four times. The medical examiner testified that three of the four gunshot wounds were

potentially lethal. The cause of Marilyn’s death was multiple gunshot wounds and the manner of

her death was homicide.

       The jury heard testimony regarding Laura’s purchase on June 28, 2008 of the handgun

used to shoot Marilyn. Shortly after Academy Sports & Outdoors in Mesquite, Texas, opened,

Laura approached employee Don Seeger about purchasing a gun. Seeger testified that something

with regard to her overall demeanor “gave him pause.” She was nervous and anxious, and she

did not make eye contact with him. She was evasive in responding to his questions and was not

able to tell him how she wanted to use the gun. Laura did not express a preference for a type of

gun, she “just want[ed] a gun.” Because he had concerns about selling a gun to Laura, Seeger

asked another store employee, Paul Singleton, to come to the counter to speak with her.

       Singleton testified Laura was well dressed and groomed, was not disheveled, and did not

appear intoxicated. Singleton testified he engaged Laura in conversation, asking her what caliber

and type of gun she wished to purchase and how she intended to use the gun.        Laura did not

make eye contact when he spoke to her. Laura appeared coherent, although she gave vague and

unsatisfactory answers to his questions. She said she did not know why she wanted to purchase a

gun, which was a “red flag” to Singleton. He decided not to sell her a firearm because he

thought she might commit suicide. Singleton emailed other Academy Sports & Outdoors stores

in the area, including stores on Forest Lane in Dallas and in Plano, advising not to sell Laura a

gun. Shortly after his interaction with Laura at the Mesquite store, Singleton spoke with an

employee at the gun counter of the Forest Lane store who indicated Laura was at that store.




                                              –4–
       Jack Hall, an employee of the Academy Sports & Outdoors store located on Forest Lane,

testified he received a telephone call from an employee of the Mesquite store, advising a female

customer was not permitted to purchase a firearm at that location because she was acting

strangely and the employee did not feel comfortable selling her a gun. Later that day, Laura

came to the Forest Lane store and advised Hall and Paul Sanchez, another employee at that store,

that she wanted to buy a weapon. According to Hall, Laura acted strangely and appeared

troubled, paced back and forth, would not make eye contact with anyone, and was either

wringing her hands or holding her head in her hands. Hall stated he would not have sold her a

weapon.

       According to Sanchez, Laura appropriately engaged in conversation with him. She was

coherent in responding to his questions, but she was evasive and “not very forthcoming.” Laura

told Sanchez she wanted one of the firearms appearing in a recent store advertisement. In

addition, she stated she wanted to purchase 500 rounds of ammunition. Sanchez told her the

store did not sell ammunition in that quantity. Because she did not provide answers that made

sense regarding her purpose for purchasing a gun, Sanchez informed Laura he was not

comfortable selling her a firearm. Laura asked him if the reason he would not sell her a gun was

because she is a girl or was not wearing camouflage. Sanchez explained he would not sell her a

firearm due to her uncertainty about the type and caliber of firearm she wanted and her expressed

desire to purchase the gun not for her own use but to give to her brother. Sanchez testified that

Laura seemed kind of nervous, was “out of it,” “not all there,” and behaving “bizarrely.” He

stated he did not intend the “out of it” and “not all there” descriptions to be taken as a comment

on Laura’s mental health, and he did not form any judgment as to her mental health. Laura did

not seem to be hearing or responding to voices that were not there. She did not act in a way that

made Sanchez believe she was experiencing hallucinations. He described her as appearing not

                                               –5–
comfortable being there. He worried she was going to make a scene, indicating she was shaking

so hard “she was coming out of her shirt.”

       When Laura left the Forest Lane store, she gave the impression to Hall she was going to

another Academy Sports & Outdoors store. Hall called two Academy Sports & Outdoors stores

in Plano, Texas, and provided information to them regarding Laura’s physical description, name,

and driver’s license number. Hall advised employees of the Plano stores that Laura had been

denied purchase of a firearm at both the Mesquite and Forest Lane stores that day. Nevertheless,

at approximately 1:30 p.m. that day, Laura purchased the gun used to shoot Marilyn at an

Academy Sports & Outdoors store in Plano.

       Laura’s father, Miguel Martinez Delacruz (Miguel), testified regarding the shooting.

According to Miguel, when he arrived at the home in Garland, Texas, where he, Marilyn, and

Laura lived, Laura saw him drive up and slammed the front door. After Miguel came inside the

home, Laura asked him to leave and go to a store to buy her a candy bar. Miguel asked Marilyn

to go with him to get Laura a candy bar after he took a shower. Miguel stated he invited Marilyn

to accompany him because he did not want to leave Marilyn alone with Laura. Miguel testified

Laura seemed aware of “what was going on.” He believes that Laura asked him to leave and go

to a store to buy her a candy bar in order to get him out of the house so she could kill Marilyn.

After taking his shower, Miguel found the front door of the home ajar and Marilyn lying lifeless

on the front porch. When he saw Laura, she said, “I want to kill myself.” As Miguel was calling

9-1-1 to report the incident and request assistance, Laura said she was going to kill herself.

       D.C. Jackson, an officer with the City of Garland Police Department, received a dispatch

to the address of the Delacruz home. Jackson was told a female had shot her mother and was

trying to kill herself. Upon arriving at the scene and coming in contact with Laura, she was told

to put her hands up, which she did. Laura was placed in handcuffs, escorted out of the home,

                                                –6–
and placed under arrest. Laura did not resist police officers, did not question why police officers

were at the home, and seemed to understand why officers were there and were placing her in

handcuffs. Jackson testified Laura wanted to know if Marilyn was dead. According to Jackson,

Laura did not appear regretful or remorseful, and she did not appear to be responding to voices in

her head.

          William Ellstrom, a detective with the City of Garland Police Department, interviewed

Laura. The videotape of that interview was played for the jury. When asked whether she knew

what happened, Laura stated she shot and killed somebody. Later during that interview, Laura

said, “I shot my Mom,” “I killed her.” Laura said she used a gun that was pink. 3 When asked

her purpose in buying the gun earlier that day, she said she “just bought it.” She stated that she

attempted to purchase the gun at a store in Mesquite, but the sales clerk said she did not look

stable and would not sell her a gun. She then went to a second store to purchase a gun. The

sales clerk asked if the gun was for self-defense, to which she responded it was for her husband

or boyfriend. The clerk said he would not sell her a gun for someone else. Laura then described

going to a third store where she purchased the gun and ammunition with a credit card.

          Laura told Ellstrom she hid the gun she had purchased under a hamper in the garage. She

asked Miguel to go buy her a candy bar because she did not want him “to see all the

commotion.” While her father was in the shower, she shot Marilyn. Laura stated to Ellstrom

that killing her mother was the wrong decision. In the statement Laura wrote that night in

conjunction with Ellstrom’s interview of her, Laura wrote, “That was a big mistake. I’m gonna

pay for it. . . . I am so mad and disappointed with myself for killing my own guardian.” Laura

told Ellstrom that after she shot her mother, she wanted to kill herself. She indicated she thought

of killing herself in her jail cell but did not see anything in her cell she could use to hang herself.

   3
       The Academy Sports & Outdoors receipt for the purchase of the gun indicates it is a “Rossi pink .38.”



                                                                     –7–
Laura told Ellstrom she had been diagnosed with schizophrenia five years prior to the offense,

and she was experiencing “some of that” today. She stated she was not mentally ill.

       Considerable evidence was introduced regarding Laura’s history of mental illness and the

mental disorder that preexisted the offense. Miguel testified that at the age of sixteen, Laura

began having psychiatric issues. He learned Laura “had schizophrenia” when she was eighteen

years old. Laura had been seen at several psychiatric treatment facilities when her problems “got

worse,” including instances of hallucinating, “talking silly,” “talking to people who weren’t

there,” “or just coming up with nonsense.” Miguel said Laura would talk about the Holocaust

and Hitler killing Jews.

       Miguel testified that Laura was on disability, and Marilyn was appointed her guardian

and received disability checks on her behalf. Laura would become upset with Marilyn and they

would argue. Marilyn would “nag” Laura about being lazy and sleeping all day. Laura became

angry when Marilyn would not allow Laura to borrow her car. According to Miguel, Marilyn

was afraid of Laura’s behavior and her mental illness. Miguel testified he and Marilyn would

avoid doing things to upset Laura, but on occasion Marilyn would raise her voice to Laura.

Marilyn told Miguel of arguments she had with Laura in which Laura called her “ugly things.”

Miguel testified that for several years, he and Marilyn locked their bedroom door at night out of

concern regarding Laura’s behavior and because he was worried her illness might lead her act

violently.

       Josephine Matrese, Marilyn’s niece, testified that Marilyn was the person in the family

most concerned about Laura’s mental health. Marilyn took Laura to doctors and hospitals, and

she was increasingly nervous and worried about Laura’s deterioration. The relationship between

Marilyn and Laura was not abnormally hostile.




                                              –8–
          Laura’s older brother, Michael Delacruz (Michael), testified at trial. He learned about

Laura “getting sick” in 2005. She did not finish Mesquite High School and had to transfer to

another school. Marilyn told Michael about episodes in which Laura would “see things” and

about instances of Laura lying. Michael observed Laura would pace back and forth, stay in her

room in the dark, and sleep all day and night. She would laugh for no reason and when he asked

her what she was laughing at, she would say someone told her something funny when there was

no one there. Laura told Michael that Osama Bin Laden, Charles Manson, or a bearded man who

looked like Santa Claus was present when there was no one else in the room. She would say

things like “the Holocaust was not real” and describe “a conspiracy theory” involving the World

Trade Center. Michael said he knew there was something wrong with Laura and doctors had

told Marilyn that Laura was schizophrenic and bipolar. Marilyn had done research and told

Michael that sometimes persons with schizophrenia killed their family members. He had heard

of instances where Laura was naked at a store and was in a hospital emergency room after being

observed on a table barking like a dog. Laura had been admitted to four different psychiatric

institutions. Marilyn was “doing the mental side” with regard to Laura and was appointed

guardian for Laura. Marilyn controlled how much money Laura received from her disability

checks.

          The jury heard recordings of telephone calls Laura made in 2012 from jail to Miguel and

to Stephen Watson, her ex-boyfriend. To Miguel, Laura conveyed she had been told by people

that she had a “really good case” for mental illness and that she would probably “do” five more

years and go home on probation. She mentioned a woman who had drowned her children and

was found not guilty by reason of insanity. Laura discussed wanting to be transferred to another

facility because the food was better there and she would be allowed to wear makeup and go

outside.

                                                –9–
       In her calls to Watson, Laura discussed an upcoming evaluation of her sanity at the time

of the shooting. Watson told Laura she “deserve[d] the protection” of being found not guilty by

reason of insanity and to be certain to communicate to the individual conducting the evaluation

that she was not taking her medications and was not in her right mind at the time, and that if she

needed to, she should tell of the voices she heard. Watson told Laura she should tell “them” she

had benefitted from treatment and realized she had to take her medications.

       Laura talked to Watson about wanting to make sure she got some money from Marilyn’s

life insurance and that Miguel was trying to sue her and take all the money. Laura told Watson

that if she was found not guilty by reason of insanity, she would receive about $500,000 from

Marilyn’s life insurance. Laura also told Watson that she did not want to plea bargain because a

consequence of a plea would be that she would not receive any of the insurance proceeds; Laura

then indicated that if she was found not guilty by reason of insanity, she would receive $250,000

from Marilyn’s life insurance. She stated she would rather spend “another year or two locked

up” than not receive any money. Laura told Watson that was their “little secret.” He cautioned

her that the telephone calls from jail were monitored. Watson told Laura not to talk about

receiving money from Marilyn’s life insurance because it would be seen as a lack of remorse.

       Jack Randall Price, Ph.D., a clinical and forensic psychologist, testified regarding his

September 2012 interview of Laura and his opinions regarding her sanity at the time of the

shooting. Price’s report was admitted in evidence. Records of Laura’s psychiatric treatment

prior to the offense were also admitted in evidence.           Laura had been diagnosed with

schizoaffective disorder, a bipolar disorder. It is a category of mental illness that includes some

psychosis, is a serious mental disorder, and may involve auditory hallucinations and depressive

or manic episodes. Price testified Laura had a severe mental illness at the time of her evaluation

and at the time of the offense.

                                              –10–
       Price considered Laura’s behavior prior to, during, and just after the offense to determine

whether her mental disorder was active at the time and if so, whether it prevented her from

knowing right from wrong. According to Price, Laura’s behavior before and at the time of the

offense suggested an awareness of wrongdoing. Laura did not assert at the time of the offense

that she was unaware that her conduct was wrong. Laura’s behavior was goal-oriented and

aimed at concealing her intentions. Her purchase of the gun was purposeful, and she went to

great lengths to purchase the gun by borrowing a credit card from Marilyn for the feigned

purpose of buying clothes and by going to three different stores to accomplish the purchase of

the gun. Laura hid the gun she purchased, demonstrating she knew it was wrong to have a gun.

She requested that Miguel leave the house and go to the a store to buy her a candy bar, indicating

she knew what she was going to do was wrong, and she did not want him to be there to see “all

that was going to happen.” According to Laura, when her father announced that he was going to

take a shower, she thought she could kill her mother without him interfering. In Price’s opinion,

Laura’s behavior after the occurrence, such as attempts to harm herself, trying to leave the scene,

her initial response to the police by raising her hands, and her telling the police later that night

that what she had done was a mistake and wrong, demonstrate, at least in part, an awareness of

the potential consequences of her actions.

       In the interview with Price, Laura made statements that at the time she shot her mother,

she knew it was wrong and she felt bad about it. Laura told Price that she hoped to be found not

guilty by reason of insanity, and she was not in her right mind at the time of the shooting. She

said she “was really sick” and she “is mentally ill.” She said she heard the voice of “Earl” and

he told her to buy a gun. Laura first told Price that she had not heard Earl’s voice since shooting

her mother, but then said she heard the voice say everything was going to be fine. Price believes




                                               –11–
that the voices telling Laura to kill her mother because she was Jewish was one factor that led to

this event.

        Laura told Price that Marilyn was sweet and gentle with her. However, Price testified

there was enough family conflict for Miguel to tell investigators that he and his wife had been

concerned about Laura hurting one of them. Laura told Price that she argued with her mother.

The arguments appeared to stem from Marilyn trying to control Laura’s behavior. Laura told

Price she did not like her mother nagging her about things. She also said she was angry about a

fight she and her mother had about a month before Marilyn was shot. Laura told Price that, at

some point, she learned Marilyn had changed her will, and Laura was upset about that.

        Price had heard the recordings of telephone calls Laura made to Watson. In his opinion,

Laura’s statements to him in the interview followed closely what Watson had “coached” her to

do. In the interview, Laura told Price she had not discussed a defense of legal insanity or

Marilyn’s estate with anyone. When Price asked her who Watson was and about talking to him

on the telephone from jail, Laura became “deflated.” She denied Watson advised her about a

defense of legal insanity, although she said she had discussed with Watson that she could inherit

some money from Marilyn and that her father was suing her for money Marilyn left her.

        Price opined that despite suffering from a severe mental disease or disorder at the time of

the offense, Laura knew her conduct was wrong. Therefore, in his opinion, Laura did not meet

the definition of insanity under Texas law at the time of the offense.

        The jury also heard the testimony of Kristi Compton, Ph.D., a clinical and forensic

psychologist, regarding her evaluation of whether Laura was legally insane at the time of the

offense. Compton’s “Mental State of the Offense Evaluation” was also admitted into evidence.

Compton testified that in an insanity evaluation, the primary thing to look at is the mental state

of the accused at the exact time of the offense, and it is preferable to interview the person shortly

                                               –12–
after the offense. Compton interviewed Laura three times in September 2012, four years after

the offense. To bridge the gap between the event and the time of the interviews, Compton

reviewed the videotaped police interview of Laura the night of the event; Miguel’s videotaped

statement; the audio recording of Miguel’s 9-1-1 telephone call; police narrative and incident

reports; affidavits of various employees of Academy Sports & Outdoors; Laura’s records from

Dallas Regional Hospital, Mesquite Community Hospital, Timberlawn Hospital, Vernon State

Hospital, Dallas MetroCare Services, and Parkland Hospital; and evaluations of doctors who had

seen Laura in jail. Compton also performed testing to determine if Laura was “malingering” in

an attempt to feign mental illness and interviewed Miguel.

        According to the records reviewed by Compton, Laura was diagnosed at the age of

sixteen with an anxiety disorder and was not in touch with reality, believing she was

communicating with a “secret society.” At the age of twenty-two, Laura was again experiencing

hallucinations, delusions and homicidal ideations, and had been hearing voices in her head for

the past four years. Laura was twice admitted to Timberlawn Hospital at the age of twenty-two,

the records indicating she was paranoid, delusional, hallucinating, not in touch with reality, and

experiencing “command hallucinations” where voices were telling her to kill herself. She was

diagnosed with schizophrenic disorder, which can cause psychosis. At twenty-five years of age,

Laura attempted suicide by taking over-the-counter pain relievers. At that time, she was having

command hallucinations. She was again diagnosed with schizophrenia and sent to a psychiatric

treatment facility.

        Compton testified that five days before the offense, Laura went to MetroCare Services

requesting medications. She had not been seen by health care providers for approximately three

months at that time.      At MetroCare Services, Laura was prescribed antipsychotic and

antidepressant medications. According to the police offense report, medications were found

                                              –13–
among Laura’s property and in the medicine cabinet of the home. Some of the medications

appeared to have been taken, but the number of pills missing did not equal the number of pills

that should have been taken in the intervening five-day period.

       According to medical records reviewed by Compton that were generated a week and one-

half after Marilyn was shot, Laura was diagnosed with schizoaffective disorder of a bipolar type.

The records indicate Laura was paranoid, “grandiose,” and having hallucinations telling her to

kill herself. On July 12, 2008, she was noted to be psychotic and to have stated, “I shot my

mother. I didn’t mean to do it.” Laura reported hearing voices that told her to get a gun and

shoot her mother and a man’s voice telling her to hurt herself and do bad things. Records of

August 26, 2008 indicate Laura was in a manic state. In March 2009, Laura was sent to Vernon

Hospital, the State psychiatric hospital.

       According to Compton, Laura reported to doctors on August 20, 2009 that she was

hearing voices of Osama Bin Laden and God, felt she was linked to terrorist attacks and other

catastropes, the Holocaust, and Michael Jackson’s death. Laura described the voice of an older

man she referred to as Earl, Henry, or Ford, and the voice was accusing her mother of being too

Jewish, threatening to do brain surgery on Laura, and telling Laura to kill herself. Laura told

Compton that she knew killing her mother was wrong, but she had no choice because “Earl

wanted it done.”

       During Compton’s interview of Miguel, he told her of instances where Laura locked

herself in an armoire for hours and of her not sleeping or keeping up with proper grooming.

Miguel told Compton Marilyn had increased the amount of her life insurance before her death,

but he could not provide Compton evidence that Laura shot her mother to recover proceeds from

that life insurance policy.




                                              –14–
       In her report, Compton stated, “A person has a mental disease or defect in mental

impairment when severe enough to prevent one from fully understanding their conduct was

wrong.” Compton testified that her standard for a determination of insanity is the same as the

legal standard. Compton testified her focus was on determining whether, at the time Laura

purchased the gun and shot her mother four times, she understood that her conduct was wrong or

whether hallucinations and delusions were driving her behavior and she acted at the behest of the

hallucinations and delusions. Compton stated that some people can be influenced by delusions,

yet know their behavior is wrong and have the capacity to resist, which is why it is important to

look at the person’s behavior at the time of the offense.

       It was Compton’s opinion Laura was suffering from hallucinations and the effects of

recreational drugs at the time of the offense, and that is what precipitated the shooting. Based on

Laura’s history and statements she made in close proximity to the offense, Compton came to the

conclusion that Laura did not have the mental capacity at that time to fully appreciate or

understand her behavior was wrong and that she was legally insane at the time of the offense.

Compton acknowledged that initially she did not think Laura was going to meet the criteria for

legal insanity, because Laura did not disclose any psychosis to police officers. Instead, Laura

exhibited a “flat affect” and referred to Marilyn as “the victim” and “guardian,” and in the

recording of Miguel’s 9-1-1 telephone call, Laura can be heard in the background calmly stating,

“I got to go. I got to kill myself now.” However, after reviewing Laura’s medical records and

talking to her, Compton concluded Laura was not in her right mind at the time of the offense and

was experiencing a command hallucination to kill her mother and then kill herself. Although in

the police interview, Laura said “I have a mental condition, but I’m not mentally ill,” Compton

thought Laura had a “big gap” in understanding she had a severe mental illness. Compton

acknowledged there were no references in the medical records to “voices” telling Laura to kill

                                               –15–
her mother until after Marilyn was dead. Compton believed that at the time Laura shot Marilyn,

her mental state was similar to the active psychotic state experienced at the time she attempted

suicide in 2007. Compton further believed that if Miguel had not stopped her, Laura would have

killed herself after shooting Marilyn.

       Compton testified it could be asserted Laura planned to shoot Marilyn in that she went to

three different stores in an attempt to purchase a gun. Compton acknowledged that the fact that

Laura asked her father to leave the home to buy her a candy bar immediately prior to the offense

was evidence she knew what she was doing was wrong, as was hiding the gun in the hamper in

the garage. Although there had been arguments between Laura and Marilyn in the past and

Compton knew Laura had stated her mother changed her will a few days before the shooting,

Compton opined that there appeared to be no motive of revenge, greed, or anger, and no “solid

evidence” Laura shot her mother for monetary gain.

                                               Analysis

       Viewing the evidence in a neutral light, the record reflects the jury heard evidence that

Laura had a long history of mental illness and had been diagnosed with schizophrenia and a

bipolar disorder. She had been hospitalized several times due to her mental illness. She went to

MetroCare Services five days before the shooting and was prescribed antipsychotic and

antidepressant medications.

       The record reflects the jury also heard conflicting opinions with regard to whether Laura

was legally insane at the time of the shooting. See Graham, 566 S.W.2d at 948 (individual may

be medically insane from mental disease or defect, yet legally she is not relieved of criminal

responsibility for the crime unless her mental condition reached the point where she was unable

to distinguish right from wrong). While Compton testified concerning her opinion that Laura did

not have the capacity to fully appreciate or understand her conduct was wrong and was legally

                                             –16–
insane at the time of the shooting, Price testified it was his opinion Laura did understand that her

conduct was wrong and was not legally insane at the time of the shooting.

       The jury viewed video of the police interview conducted hours after the shooting, in

which Laura stated what she had done was wrong.               Laura’s written statement was also

introduced into evidence in which she wrote that she made a mistake and was going to pay for it.

There was other evidence from which the jury could have concluded Laura knew shooting her

mother was wrong. The evidence demonstrated Laura’s efforts in shopping at three different

stores in order to purchase the gun used to shoot her mother were purposeful, goal-oriented, and

required planning. She concealed her purpose for purchasing the gun from the personnel at each

of those stores. The jury heard testimony that Laura hid the gun in or under the hamper in the

garage, as well as testimony Laura asked Miguel to leave the house to buy her a candy bar so that

he would not be home when the shooting occurred. Laura raised her arms when the police

arrived, and she appeared to understand why the police were there. The jury could have inferred

that Laura’s statements that she was going to kill herself after shooting her mother were

indicative she knew what she had done was wrong.

       The jury also heard testimony that Laura was angry with her mother about an argument

between the two of them. There was further testimony regarding Laura’s displeasure in Marilyn

changing her will and that Marilyn had increased her life insurance prior to the shooting. The

jury also heard portions of Laura’s telephone calls from jail in which she discussed her desire to

be found not guilty by reason of insanity and her belief that she would be released after several

years and would collect proceeds from Marilyn’s life insurance policy. From the evidence, the

jury could have inferred a potential motive for Laura shooting Marilyn and a plan for Laura’s

assertion of a defense of not guilty by reason of insanity.




                                                –17–
          The jury was able to make its own determination as to Laura’s state of mind at the time of

the shooting and whether she knew her conduct was wrong. The issue of insanity at the time of

the offense lies in the province of the jury not only with regard to the credibility of the witnesses

and the weight of the evidence, but also as to the limits of the defense itself. See Graham, 566

S.W.2d at 952.4

                                                           Conclusion

          On this record, evidence was presented that Laura suffered from mental illness at the time

of the offense and conflicting evidence, including expert opinions, concerning whether Laura

was legally insane at the time. The ultimate determination of whether Laura was insane at the

time of the offense was for the jury. See Reyna v. State, 116 S.W.3d at 367. By returning a

verdict of guilty, the jury necessarily determined Laura understood her conduct was wrong and

was legally sane at the time of the shooting. We conclude a rational trier of fact could have

resolved the evidence regarding legal insanity against Laura. The evidence that Laura was not

legally insane at the time of the shooting and supporting the jury’s rejection of the insanity

defense was not so against the great weight and preponderance of the evidence that it was

“manifestly unjust,” “conscience-shocking,” or “clearly biased.” See Matlock, 392 S.W.3d at

671. Accordingly, we resolve Laura’s first issue against her.

                                                  Exclusion of Evidence

          In her second issue, Laura contends the trial court erred in excluding evidence regarding

competency evaluations performed by Dr. Michael Pittman and Dr. Lisa Clayton between the

time of her arrest and her trial. According to Laura, the competency evaluations were favorable

to her affirmative defense of insanity, and exclusion of the evidence was harmful error.


     4
       See also Boan v. State, Nos. 05-11-01702-CR & 05-11-01703-CR, 2013 WL 3956375, at *3 (Tex. App.—Dallas, July 30, 2013, no pet.)
(not designated for publication).



                                                               –18–
       The record shows the State objected to the admission of evidence of the competency

evaluations performed by Pittman and Clayton, and the trial court excluded the evidence for lack

of relevance to Laura’s affirmative defense of insanity and because of the untimely designation

of the expert witnesses by the defense. Responding to Laura’s argument on appeal, the State

asserts Laura has failed to address, as an independent basis for the trial court’s exclusion of the

testimony of Pittman and Clayton regarding their competency evaluations, the untimely

designation of those experts and has therefore waived this complaint. In further response to

Laura’s second issue, the State asserts, alternatively, that the trial court did not abuse its

discretion in exclusion of the evidence of the competency evaluations and error, if any, in

exclusion of the evidence was not harmful.

                                       Standard of Review

       We review a trial court’s decision to admit or exclude evidence, including a trial court’s

decision to exclude the testimony of an expert, under an abuse of discretion standard. Martinez

v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879

(Tex. Crim. App. 2007); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); see

also Osbourn v. State, 59 S.W.3d 809, 814 (Tex. App.—Austin 2001), aff’d, 92 S.W.3d 531

(Tex. Crim. App. 2002). The trial court abuses its discretion when its ruling is arbitrary,

unreasonable, or without reference to any guiding rules or legal principles. Lyles v. State, 850

S.W.2d 497, 502 (Tex. Crim. App. 1993). We will uphold the court’s decision if it is within the

zone of reasonable disagreement. Weatherred, 15 S.W.3d 542. And we will uphold the trial

court’s ruling if it is correct under any theory of law applicable to the case, in light of what was

before the trial court at the time the ruling was made. See Sauceda v. State, 129 S.W.3d 116, 120

(Tex. Crim. App. 1998).




                                               –19–
                                                          Proffered Evidence

           The defense made an offer of proof indicating what the excluded testimony of Pittman

and Clayton would have been. The defense stated Pittman would have testified to the contents of

the competency evaluations of Laura he performed on July 24, 2008 and August 29, 2009, and

Clayton would have testified to the contents of the competency evaluations of Laura she

performed on March 6, 2009 and August 25, 2009. The defense also stated Pittman would have

further testified that with regard to the competency evaluation of July 24, 2008, Laura was

competent in only the barest of senses, she had been on her medications for two and one-half

weeks at that point and her condition was improving, and Laura could have been more mentally

ill at the time of the shooting than she presented to Pittman at the time of that evaluation.

                                            Exclusion Pursuant to Article 39.14(b)

           Prior to trial, the trial court signed an order granting the State’s motion for discovery

under article 39.14 of the code of criminal procedure, ordering defense counsel to disclose on or

before August 30, 2012, “a date which is at least twenty (20) days before the trial is scheduled to

begin,” the names and addresses of each person Laura and her attorney may use to present

evidence under rules of evidence 702, 703, and 705. See TEX. CODE CRIM. PROC. ANN. art.

39.14(b) (West 2005) 5; TEX. R. EVID. 702 (testimony by experts), 703 (bases of opinion

testimony by experts), & 705 (disclosure of facts or data underlying expert opinions). On

August 27, 2012, the defense designated Compton as an expert witness pursuant to article

39.14(b). On September 20, 2012, two days after trial began, the defense filed an amended

   5
       Article 39.14(b) provides in pertinent part:

           On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of
           the other parties to disclose to the party making the motion the name and address of each person the other party may use at
           trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence.

   TEX. CODE CRIM. PROC. ANN. art. 39.14(b).




                                                                    –20–
designation of experts pursuant to article 39.14(b), designating Pittman and Clayton as additional

expert witnesses.

          The State objected to the designations of Pittman and Clayton as untimely, pointing out

that in pretrial hearings, matters dealing with experts were discussed and at no point did the

defense indicate Pittman or Clayton were to be called as experts. The State argued that Pittman

and Clayton conducted competency evaluations and the State had no reason to anticipate their

testimony in advance of their designations as experts because competency was not an issue in the

trial.

          The trial court agreed the designation of Pittman and Clayton as experts was untimely.

Further, the trial court noted multiple competency evaluations had been in the trial court’s file for

some time and the defense was aware of those evaluations. The trial court noted the defense had

the opportunity to timely designate these expert witnesses and noted it “seems like . . . a

backdoor way to get into the competency issue” which the trial court had ruled was not relevant

to Laura’s insanity defense and, therefore, not admissible.                             See Johnson v. State, 233 S.W.3d

109, 115 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (recognizing two factors in

determining whether trial court abused its discretion in excluding testimony: bad faith in failure

to disclose and opposing party could not have reasonably anticipated the undisclosed witness

would testify). 6

          On appeal, Laura fails to challenge this ground for the trial court’s exclusion of the

testimony of Pittman and Clayton regarding their competency evaluations of Laura. When an

appellee objects to evidence on several independent grounds and, on appeal, the appellant fails to

challenge all possible grounds for the trial court’s ruling, the appellant waives any error by not

     6
       See also Wilson v. State, No. 05-10-01604-CR, 2012 WL 3264396, at *10 (Tex. App.—Dallas Aug. 13, 2012, pet. ref’d) (not designated
for publication); Strawn v. State, No. 02-02-00170-CR, 2003 WL 21235537, at *2–4 (Tex. App.—Fort Worth May 29, 2003, pet. ref’d) (not
designated for publication).




                                                                –21–
challenging all possible grounds for the trial court’s ruling. See Marsh v. State, 343 S.W.3d 158,

161–62 (Tex. App.—Texarkana 2011, pet. ref’d); Gulley v. Davis, 321 S.W.3d 213, 218 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). By not challenging all possible grounds for the

trial court’s exclusion of expert testimony of Pittman and Clayton, Laura has waived this

complaint. See Gulley, 321 S.W.3d at 219.

      Testimony Not Relevant to Affirmative Defense of Insanity and Exclusion Was Harmless

       Even if Laura’s issue is not waived, the exclusion of the expert testimony of Pittman and

Clayton was not erroneous because the evidence was not relevant to her affirmative defense and,

in any event, exclusion of the evidence was harmless. As to relevance, the trial court ruled the

parties were not to discuss, refer or allude to Laura’s competency to stand trial because her

competency to stand trial, and the evaluations to determine her competency to stand trial, were

not evaluations of her sanity at the time of the offense and therefore were not relevant to her

affirmative defense of insanity. At trial and on appeal, Laura contends she was entitled to

introduce evidence of competency evaluations pursuant to article 46B.007(2) of the code of

criminal procedure. Article 46B.007 provides:

       A statement made by a defendant during an examination or trial on the
       defendant’s incompetency, the testimony of an expert based on that statement,
       and evidence obtained as a result of that statement may not be admitted in
       evidence against the defendant in any criminal proceeding, other than at:
       (1) a trial on the defendant’s incompetency; or
       (2) any proceeding at which the defendant first introduces into evidence a
           statement, testimony, or evidence described by this article.

TEX. CODE CRIM. PROC. ANN. art. 46B.007 (West 2006). Laura asserts article 46B.007(2)

allowed her to introduce matters regarding her competency to stand trial because they relate to

her defense in that competency was relevant to her state of mind nearer the time of the offense

and to the continuation and ongoing nature of her mental illness. The State responds that

testimony regarding Laura’s competency to stand trial was not relevant to her insanity defense.

                                              –22–
Neither Pittman nor Clayton evaluated Laura’s sanity at the time of the shooting. Rather, Dr.

Pittman and Dr. Clayton evaluated Laura to determine, at the respective times of the evaluations

they performed, whether Laura was competent to stand trial.

       Determination of a person’s competency to stand trial is different from a determination of

whether a person was legally insane at the time of an offense. Compare TEX. CODE CRIM. PROC.

ANN. art. 46B.003(a) (West 2006) (person is incompetent to stand trial if the person does not

have sufficient present ability to consult with person’s lawyer with reasonable degree of rational

understanding or a rational and factual understanding of proceedings against the person) with

TEX. PENAL CODE ANN. § 8.01(a) (it is affirmative defense to prosecution that at the time of the

conduct charged, the actor, as a result of severe mental disease or defect, did not know his

conduct was wrong). Accordingly, the expert testimony of Pittman and Clayton relating to their

evaluations of Laura’s competency to stand trial was not relevant to the question of whether she

was legally insane at the time of the offense, and the trial court did not abuse its discretion in

excluding the evidence.

       As to harm, rule of appellate procedure 44.2(b) provides that any error, other than

constitutional error, that does not affect the defendant’s substantial rights must be disregarded.

Tex. R. App. P. 44.2(b); Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007); see also

Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007) (erroneous evidentiary ruling

“generally constitutes non-constitutional error and is reviewed under Rule 44.2(b)”). A

substantial right is affected when, after reviewing the record as a whole, a court concludes the

error had a substantial and injurious effect or influence on the outcome of the proceeding.

Burnett v. State, 88 S.W.3d 633, 637 & n.8 (Tex. Crim. App. 2002). In assessing harm, we

examine the entire record and “calculate, as much as possible, the probable impact of the error

upon the rest of the evidence.” Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). We

                                              –23–
consider, among other relevant factors, the “testimony or physical evidence admitted for the [fact

finder’s] consideration, the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with the other evidence in the case.”

Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); Motilla v. State, 78 S.W.3d 352,

355 (Tex. Crim. App. 2002). The weight of the evidence of the defendant’s guilt is also relevant

in conducting the harm analysis under rule 44.2(b). See Neal v. State, 256 S.W.3d 264, 285

(Tex. Crim. App. 2008); Motilla, 78 S.W.3d at 357.

        The defense timely designated Compton to testify. The trial court ruled Compton could

testify regarding the content of records and reports she reviewed, including competency

evaluations by Pittman and Clayton, in performing her evaluation of Laura and in forming her

opinion of whether Laura was legally insane at the time of the shooting. The limitation on

Compton’s testimony was that she not refer to competency or to the fact that evaluations by

Pittman and Clayton were performed for purposes of determining Laura’s competency to stand

trial at various times after the offense.

        Dr. Compton testified at trial that in performing an insanity evaluation, the primary

consideration is the person’s mental state at the “exact time of the offense.” Compton’s insanity

evaluation of Laura occurred four years after the shooting. The information Compton reviewed

included evaluations of doctors who had seen Laura in jail and in mental hospitals following the

shooting, and Compton testified regarding statements Laura made and findings of health care

providers following the shooting, although she was not allowed to testify regarding the

competency evaluations or that certain statements by Laura may have been made in conjunction

with competency evaluations.        Because Compton was permitted to testify with regard to

statements made by Laura during competency evaluations, we conclude error, if any, in

excluding the testimony of Pittman and Clayton did not have a substantial and injurious effect or

                                              –24–
influence in the determination of Laura’s guilt or the rejection of her insanity defense by the fact

finder. Accordingly, when the record is considered as a whole, we conclude Laura was not

harmed by any error in the trial court’s exclusion of the evidence. We resolve Laura’s second

issue against her.

                                           Conclusion

       Having resolved Laura’s first and second issues against her, we affirm the trial court’s

judgment.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE


Do Not Publish
Tex. R. App. P. 47

121354F.U05




                                               –25–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

LAURA DE LA CRUZ, Appellant                         On Appeal from the 291st Judicial District
                                                    Court, Dallas County, Texas,
No. 05-12-01354-CR         V.                       Trial Court Cause No. F08-24680-U.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Justices Francis and Lang-Miers
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of January, 2014.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE




                                             –26–
