      OFFICE OF THE ATTORNEY       GENERAL   OFTEXAS
                          AUSTIN




Xonorable Reginald
District Attorney
HuntsviJle, Texas
Dear Sirr
                  Opinion NC. O-2872
                  Re: ,Jhether a judgment of conviotion
                       may be ooLlaterallp atzaoked in
                   I' the manner and under the cirouz-
                  '   'stancss described.
           Your letter of xotiember5, 1940, direoted to this
Department, reads.!: part a8 follows~
            ~-Y               .'
          y-V. A. Briggs, an inma& of the Terse Feniten-
     tlafp, has..filed appllostlon for his release from
     prison‘upon a writ ot habeas corpus, allsglng that
     the -jndgmnt and sentenos of conviction is void by
    ‘xeason of the fact that at the time he was oonvlcted
     he had been Rrsviouslg  adjudged insane, and that eaid
     judgment had not;been set aside.
         *Aa 1 undbrstand the case Briggs was adjudged
    insane in the County Court of Harris County, Teraa,
    about 1921, which judgment had not been set aside in
    any manner at the time of hia trial in 1927, whioh
    resulted in his incarceration in the Penitentlary,and"
    being the judgment End sentmoe involved in this con-
    test.
Honorable Reginald Braoewell, Page 2


          “The case wherein Briggs was convioted and la
     now serving time Is reported in 2 9. d. (Zd) 23S.
            *I have a oertiried 00~7 or the charge of the
     Court that wee given in that ease and no issue of
     insanity wae submltted to the jury, It evidently not
     having been raised in the trlel of this o~ee.~
          Relating to these faots, you request our opinion
upon the question rtated by you as hollows:
          "The legal prlnoipel involved in this oase la
     whether or not a person who has been oonvioted of in-
     sanity, and said oonviotlon not set aside, who after-
     wards oommlte a orlminal offense nnd Is tried on said
     crirnineloffense and oonvloted, and not having raised
     the issue ot insanity in hls main trial, can after his
     imprisonment be released upon a writ of habeas oorpus,
     alleging that the judgarsntand oc;nvlotlonIs void, by
     reason or the iaot that he was legally Insane at the
     time of his oewlotlon.w
          From your letter and the report of the case of Brlggs
v. State in 2. S. W. (Zd) at page 238, we oonstrue the fasts
to present simply the queatlon or a collateral attack, by a
habees oorpus proceeding, upon a judgment of conviction, grounded
upon the proposition that in virtue of an unvaoated judgment of
Insanity against the defendant many years before, his later
oonvlotlon ot a orlmlnal offense lo void, notwithstanding ths
failure of the acoused to interpose the defenoe of insanity
and to establish the judgment of insanity upon the trial of
the orininel oaae.
          The habeas corpus applioetlon desorlbed In pour
letter is not, of course, one seeking to establish the present
ineanitp of Rriggs, In other words, insanity after oonvlctlon,
as contemplated by Article 921, et seq., of the Code of Grim-  b
lnal Prooedure.
          The preolse question which your letter present6 Is
an original one in Texas insofar as our careful investigation
has revealed.
          Article 34 of the Penal Code of Texas provides:
Honorable Reginald Bracewell, Page 3


          *No eat done in a state of insmity can be
     punished as an offense. No person who becomes in-
     sane after he committed an offense shall be tried
     for the same while In such oondltion. No person
     who beoDmes insane after ho la found guilty shall
     be punished while In suoh oond1tion.v
          Thls statute simply means that insanity at the time
of the oommlsslon of a orime Is a defense thereto, that in-
sanity at the time of the trial shall preclude a trial of the
orimlnal offense while the aoouged Is in snob condition, and
that insanity after conviction shall preolude punishment there-
for while the oondltion oontlnuea.
          Evidence of the first, as a defense to the criminal
oharge, may be introduced under the plea of “not guilty*.
Article 521, Code of Crlmlnal Procedure.
          The second authorizes and contemplates, upon timely
request therefor, that the aooused is entitled to and should
be given a separate hearing on the question of his Insanity prior
to his trial upon the criminal oharge. Rloe v. State, 120 3. V?.
(Zd) 388, and oaaes olted.
          The    third may be taken advantage of after oonvictton
of a orimlnal    offense under the procedure outlined in Article
921, et seq. (   of the Code of Criminal Procedure. Ex parte
klllikln, 299    S. W. 433; Eaoue v. State, 227 S. W. 483.
          Neither of the,foregoing was or la being avalled of
by Brlggs. 31s prior adjudication of insanity wae not shown
in his trial for robbery and no evldenoe of insanity presumably
was introduoed in the trial. He was represented by counsel in
the trial court and on the appeal of his ease wherein oertain
questions in no sense involving his alleged insanity were de-
olded adversely to him by the court of Criminal Appeals of
Texaa.
          Presumably, also, he made no request for a prior hear-
ing upon hla sanity berora his trial upon the robbery charge;
          Be does not at this time in his applloatlon for re-
lease upon a writ of habeas corpus claim that he Is now insane.
          It is recognized, of course, that the presumpticn of
sanity which the accused must overcome in a criminal c8se caases
to exist and there arises a presumption of insanity whlichthe
State must overoome upon the showing by the accused of s prior
and unvacated judgment Of insanity against him.
Honorable Reginald Bracewell, Rage 4


           “In Texas the rule is that, khere insanity has been
once shown to exist as by judgment 0r the court the pre aump-
%lon is that 1naanity continues and the burden Af proof ia
upon the State to show otherwise, and the jury must be so ln-
formed." Morse v. State,   152 3. II:.
                                     927, 928; Runt v. ;;tats,
26 s. ?J. 206: Yantis v. State, 255 S. VI. 180; Davidson v.
state, 4 s. ;I:.(2d) 74; Kizer v. State, 92 S. X. (26) 439;
young v. State, 46 S. W. (2d) 991; olover v. State, 69 S. ?J.
(2d) 136.
          Does this mean, however, that the insanity of the
accused need not be interposed by him upon his trial, such
defense not established, a prior judgment of insanity not in-
troduced in evldenoe, and, nonetheless, a judgment of convlc-
tion rendered againet him in such case would be void because
at some time in the past the defendant had been adjudged ln-
sane? We think not.
          In Emerson v. State, 59 S. 2. (26) 117, there was
before the Appellate Court a bill Oomplaining of, generally,
the raot that the appellant was not mentally or physically
able to defend himself properly, and of a refuaal to aontinue
the aase for suoh reason. After pointing out facta warranting
the trial court in refusing the continuance, the court said:
          “Examining the court’s oharge in connection with
     the other parts of the reaord, we find nothing to lead
     us to oonolude that upon the trial of this ease any
     plea of insanity wae Interposed. Under the merciful
     wovlsiona of our statutes. one cannot be,trfed while
     in e oonditlon of snsanity; but in order to avail him-
                 supposed error In putting him



          Ex Farte MoKenzie, 2S S. X. (2d) 133, involved an
original application for a writ of haveas corpus based on an af-
fidavit stating that the applicant ‘~?ainsane at the time of
his trial and oonviction of murder. The court in questioning its
authority over the trial court In suoh matters, declared:
           “It is more than -questionableas to whether we
     have any authority ov?r any trial court in such mat-
     ters.   From the recond on file in tPJs court it is
     plain that applicant rms ably defended when upon trial
J

    Honorable Reginald Bracowell, Page 6


            for murder. The situation revealed by said record
            indioates aotivlty and participation in the trial by
            applioant hb3eir.   Said trial was exhaustive. If
            there had been any evidenoe of insanity, or desiz to
            'interposesuch plea, it appears to ua same should
            have been advanced at that tim0.n [Esnphasis ours)
                    In Young v. State, 46 S. :Y. (2&)   991, 995, the
    oourt    mid:
                  %omplaint  is made of the fact that the issue
            of insanity  at the time of the triar was not submitted
            to the jury or passed on in any manner.     *?le find noth-
            ing in the record in any way raising suoh Issue, either
            during the trial   or antecedent thereto; the latter    be-
            ing ordinarily the proper time to have instituted such
            inquiry, if 8 dsol~lon   of same be desired. As far as
            we know, appellant was represented by attorneys of his
            own ohooslng, and we are Impressed with a belief that,
            had affidavit been mad8 prior to this trial setting up
            present lnsani~ty,or evidence presented suggesting in-
            sanity at the time of trial, a jury would have been
            impanefed for the determination of that issue. Ramlrez
            v. State, 92 Tsx. Cr. R. 38, 241 S. Y. 1020. Failing
            to pursue this oourse, we do not believe the trial
            oourt called upon to submit the issue of present in-
            sanity here, and certainly he WRB not called on, as
            said in Soderman v. State, 97 Tex. cr. P., 30, 260
            S. W. 607, upon his own initiative   to atop this trial
            after it had begun and begin and conduot another. . . .I)
                    In Sodermsn v, State, 260 S. ?V.607, 611, it was
    held:
                 -During the trial one of the witnesses for the
            appellant sxprdssed the opinion that the appellant was
            insane at the time. After verdict, for the first   time,
            appellant, in his motion for a new trial, complains
            of the failure of the court to cell another jury and :
            have the issue of present insanity tried preliminary
            to submitting the issue of appellant's guilt to the jury.
            If demand for a separate trial upon the issue Of present
            insanity had been made in B timely manner, doubt$hzs   the
            trial court would have acaorded the privilege.
            right of the trial court upon his own initiatiV8, after
            the jury had been impaneled and charged with the deliver-
            ance of the apl;ellant,to atop the trial and begin
,

    Honorable Reginald Bracswell, ?aee 6


         another would be open to sarlous question. The
         statute8 do not say in terma that   the ieaue of
         present insanity shall be first tried. Tbls court
         has held, however, that where the demand is trade
         before the trial begins it should be first tried
         ror the obvloua reason that one who la insan might
         not be in a position to progerly oonduct hls trial
         upon the Issue of guilt or innooenco. Article 39, P.
            * Ramirez v. State, 92 Tex. Cr. R. 38, 241 S. ;'r.
         kl.     Where, as in this case, prosent Insanity la
         not Intimated in advenae by the attorneys OondUOting
         the trial, or is not at that time   apparent to the
         aout, the failure   or the court  to lmpenel e jury-to
         determine that Issue preliminary to the trial for
         the offense with whioh the accused was charged cannot
         be successfully urged after verdict,*
              zhlle these oases relate specifically to the question
    or the insanity or an aocused person at the time of his trial
    upon the criminal charge and his right to a separate sanity
    hearing, the principle which they declare is that an accused
    person must assert any right arising from his alleged insanity
    at the proper time. Insanity 13 not a permanent condition under
    the law. Rotwithstanding a perBon*(sadjudicated insanity St a
    prior time, the continuanoe of the condition and its existence
    at the time of the commission of an offense, or et the time of
    trial thereupon, doea not follow as a matter of law -- a pre-
    sumption of insanity arises and the burden of proof changes
    upon the showing oi a prior end unvacated judgment of insanity.
              It was aeid in Klzer v. State, supra. that "in orim-
    inal cases where there is in evidence a-valid judgment or in-
    sanity aaainst the accused at the time or the commlealon of
    the ofre&e charged, the State must prove beyond a reasonable
    doubt that at such time the acoueed was sane end the shifting
    ot the burden or proof in the instant 0~88 from the State to
    the defendant may have been a matter of vital importance to
    him." (Emphasis ours)
                And again in this case on notion for re-hearing, it
    was said:
             "This case was approved and followed In Davidson
        v. State, 109 Tex. Cr. R. 251, 4 S. X. (26) 74, in
        which both in the original opinion and in the opinion
        on re-hearing we stressed the proposition that ahen
        the proof showed that at some time prior to the com-
Honorable Reginald Bracewell, Page 7


     mission of the offense on trial the accused had
     been adjudged Insane, and such judgment had never
     been set aside or vacated, that the burden of proof
     shifted to the State, and it became the duty of the
     trial court to instruct the jury that in such case
     ths defendant was presumed to be insane until the
     State showed beyond a reeeoneble doubt to the con-
     trary.” (Emphesie oure)
          Each of the foregoing casea, It seems, recognize the
proposition that it is incumbent upon theaccused to establish
the existence of e prior unvacated judgmant of insanity before
and whereby he may take advantage thereor.
          It may therefore be said that the defense cf insanity
at the time of the commission of an offense, and it is but a
defense to the charge, ie one which must be asserted by the
defendant upon his trial. Ii he has never boan adjudged Insane,
he must show by a preponderance of the evidence that he wae ln-
sane at the time. If he haa been adjudged insane and such judg-
ment has not been set aside or vacated, the sccused may, by
establishing this judgment before the court, secure to himself
the advantage or the presumption of insanity which the State
must overcome. In either event, hoaever, the defendant must
Interpose his plea of insanity In the required manner; there
is no intimation in the reported cases that he may absolutely
rail to do so and subeequently raise the issue,in a collateral
attack upon the judgment or conviction.
           Jioreover,a judgment or convictlon is rea adjudiceta
of the Issues necessarily comprehended in the trial and oonvic-
tion of a person for violating the criminal laws. One 0r these
issues is that or the sanity of the defendant for the obvious
reason that the law declares that one V&IOwas insane at the
time of the commission of an act, otherwise a criminal offense,
may not be punished therefor%
          This was clearly stated by the Supreme Court of Me-
slssfppi in kiitchellv. State, 179 Bias. 814, 176 SO. 743, 121
A. L. R. 258, as follows:
         "It has long been a settled prinCipl8 of the Com-
    mon law that 3 judgment of a court of superior juris-
    diction is conclusive by way of res sdjudicata of all
    those Issues involved in the record of the original
    trial, and which, being so involved, might have been
    therein litigated. Yardy v. 5'Pry, 102 Xiss. 197, ?,l&,
Honorable Regihald Bracewell, Page E


     59 so, 73. ;nd especially is this true when as to
     a particular issue it was neoessary for the court
     and jury to have deoided that issue in order to
     warrant the verdict and judgment xhlch were rendered.
     In order to warrant the rendition     of a vardict and
     judgmentfof crime it is necessary that the judgment
     shsll comprehend the iaaue that the accueed, both at
     the time of the commission OS the offanse and at the
     time of trial, was ot sufficient mental soundnese to
     be held to criminal acoountabilitg and to be subject
     to a trial therefor,  with the result    that when a ver-
     dict oi guilt and a judgment of condemnation have been
     returned and:anterad that action is res adjudicata of
     both the issues ment ioned."
          The elementary prinoiple, embodied in Artiale 34 of
the Penal Code, that an insane person may not be put to trial
for hla life or liberty on a criminal charge if he is at the
time insane, or be punished for an az.tii ha was insane at the
time ot its commisslsn, 13 not violated in holding that it 1%
incumbent on the aacused to assert such defense upon his trial.
As before pointed out, the plea of **notguilty” authorizes the
introduction of avidonoe by the defendant on the question of
his insanity. If he does not avail himseli of such deiense by
making the requisite proof thereof, he may not subsequently,
in a collateral proceeding, successiully attack the judgment
of oonviction against him on the basis of his alleged insanity
at the time o? the trial or the commission of the offenee.
          A moment*s refleotion will reveal the neoeseity and
propriety oi this rule. ?:ereit otherwise, a defendant oould
forego the defenee o? ineanity in the trial of the criminal
oherge, take his chances upon a succsssful defense in other
particulars, and, it unsuccessful, thereafter In a collateral
proceeding attack the judgment ci conviction as void because
of the exlstenoe of'extraneous faots.
          Furthermore, if an outstanding judgment of insanity
against the accused would render a judgment of convlotion void,
although not established in ovidenae, the rule of the presump-
tion of sanity of the defendant would, in effect, be abrogated.
@Ihestate would be compelled in evary case, as a matter of pre-
caution, to establish the sanity of the defendant beyond a
reasonable doubt lest there be In existence somawhere an unva-
cated judgment of insanity of :*rtiich
                                    it h;ldno knowledge and,
as a practical uotter, In the exercise OP diligence could not
Ifonorable3eFinnld lraoewell, ?a$8 3


bare :rlad
         knowled~s.
           ;'lnally,W! rote the case 21 tlgera,v. m3nlligen,
344 Fed. 42.0, i. ii.A. lQlUi%,3. FO, by tFa Xlnth Circuit
Gout.   whioh hoAct%that habeas cor,pueis not 3 proper remedy
to socure the releeas of :: person aonvloted  3r a orina mhlls
at large c.ltr,r?lr esceps from an Insane eeylu~, but that
the rnmdy, if any, ir by appeel. The ap~lloatlon of the
principle thus aeohred    to the oeae before u% agp%%c% in th%
PollowLng :;uor;ationfrom r,heo~inima of the oourt:




            ,',dverti~to the i;ussticn   at  ?mnd, ?t ir, therefore,
the opinion or this fapnrtmont t.kttthe judgzant ot the Ois-
triat co:!rtcY x.1 i'aacCounty 2onvLctLcg ~:rfpg% br robbery
and eaeesnia(J  $1~ gunfsb~~nt   tharai'cr,r:Sio!~ .wti afrirmsd      by
the Court or Criminal appeala of ?'esx%,is not void 1x1Virtue,
only I of a prior   unvaoated JuJ~mnt of inmnitp aFeln8t l?riage
which s/rue t3t befo,rethe court in the trtzl of the criuilnel
ease. ,;acordir#lp.it in our opinion tihant       the described     ap-
~llcsticn of t. ;/.3ri;;gs:‘*ir    L-i:raleooe frcm :xison upn e
writ of hbea::    cxv?us,  ;':lad in the ,Xstrlct   ;:c;urt OS 3ilisr
“,ountp, Texm, should be refuoed.
            ~B t3~p22:f::
                       DO nplnix    z:>onrte uctl.3 3r f3e    3lstrlct
          -L



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