Opinion filed July 21, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                     No. 11-10-00211-CR
                                         __________

                    JOSE EDUARDO VILLARREAL, Appellant

                                               V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 42nd District Court

                                      Taylor County, Texas

                                  Trial Court Cause No. 23385-A


                              MEMORANDUM OPINION
       Jose Eduardo Villarreal appeals his conviction by a jury of the offense of aggravated
sexual assault of an elderly individual by causing his male sex organ to penetrate the mouth of
the victim and by using his tongue to penetrate the victim’s sexual organ. The trial court
assessed his punishment at fifty years in the Texas Department of Criminal Justice, Institutional
Division. He asserts in a single issue that the trial court committed reversible error by denying
him a requested instruction regarding the issue of insanity. We affirm.
       An accused has the right to an instruction on any defensive issue raised by the evidence,
whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the
trial court may or may not think about the credibility of the evidence. Granger v. State, 3
S.W.3d 36, 38 (Tex. Crim. App. 1999). The affirmative defense of insanity applies if, 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) (Vernon 2011).
       In December 2008, Villarreal was found to be incompetent to stand trial and was
committed to the North Texas State Hospital – Vernon Campus – for observation and treatment.
On May 6, 2009, following a report that Villarreal was still incompetent, Villarreal was
recommitted for further observation and treatment. Following a report submitted on January 15,
2010, indicating that Villarreal, while still suffering from mental illness, had regained the
competency to stand trial, a jury found Villarreal competent to stand trial.
       The victim testified that the assault occurred on April 23, 2008. Abel Coy, Villarreal’s
cousin, testified that he had known Villarreal since Villarreal was a child. He related that he was
acquainted with him in the early half of 2008. He stated that Villarreal had been diagnosed as
paranoid schizophrenic and was getting a disability check. When asked if his mental condition
was such that ―you‖ would actually not know whether his actions were right or wrong, Coy
replied, ―Yeah.‖ He then indicated that Villarreal had said to him that angels had told him to
murder his family. He related that, on Thanksgiving about three years previously, another cousin
had banned Villarreal from his home because Villarreal had told him the angels were telling
Villarreal to kill his family. He said it was more or less back in 2007 or 2008, around the time of
the events that were being discussed. When asked if, during April 2008, these were the kinds of
behaviors going on with Villarreal, Coy replied, ―Sir, I have never had a normal conversation
with my cousin, ever.‖
       On cross-examination, Coy testified that he saw Villarreal walking in 2008 about twice a
week and would sometimes give him a ride. He related an event at which he took Villarreal with
him to the mall and left him briefly while he went into Sears to get a part for a washer. He
related that he was approached by an off-duty police officer working as security who said that
Villarreal had told a girl that her skirt was too short. He told Coy he wanted Villarreal out of the
mall or he was going to call in the police to haul him off. When asked if this was the kind of
behavior he observed Villarreal doing around April 2008, Coy replied, ―Yes, sir. He’s been like
that a long time.‖ While Coy stated that his cousin suffered from a severe mental disease or
defect, and indicated that at some vague time Villarreal did not know if his actions were wrong,

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he never offered an opinion as to whether, at the time of the offense, Villarreal was capable of
knowing that his conduct was wrong.
       Dr. John Crowley, an Abilene psychiatrist, testified that, in his opinion, Villarreal was
legally sane at the time of the offense, having the mental capacity to understand that his actions
were wrong if he sexually assaulted a woman.
       When considered with facts and circumstances concerning an accused and the offense,
lay opinion testimony may be sufficient to raise the defense of insanity. Pacheco v. State, 757
S.W.2d 729, 736 (Tex. Crim. App. 1988). However, the existence of a mental disease, alone, is
not sufficient to establish legal insanity. Nutter v. State, 93 S.W.3d 130, 131-32 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). While Coy’s testimony may have showed that Villarreal
suffered from a severe mental disease or defect and that at some time he did not know if his
conduct was wrong, it did not show that, at the time of the offense, he did not know that his
conduct was wrong. Evidence presented by a lay witness who never undertakes to express a
conclusion or opinion on insanity is not sufficient to raise the issue. Pacheco, 757 S.W.2d at
735. While Coy did express his opinion that Villarreal, as a result of a severe mental disease or
defect, did not know when his actions were right or wrong, he was so vague as to what time
frame his opinion applied as to prevent a reasonable juror from finding that Villarreal did not
know at the time of the offense whether his conduct was right or wrong.                                         We overrule
Villarreal’s sole issue on appeal.
       The judgment is affirmed.




                                                                      JOHN G. HILL
                                                                      JUSTICE
July 21, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1




       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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