NO. 07-09-00323-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 19, 2010 ROCKY A. HILL, APPELLANT
v. THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2008-419,474; HONORABLE CECIL G. PURYEAR, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION Appellant, Rocky A. Hill, enter ed a plea of guilty to four counts of aggravated robbery 1 without benefit of any pl ea bargain. After hearing the punishment evidence, the trial court assessed appell ant’s punishment at confinem ent in the Institutional Division of the Texas Department of Criminal Justice for a period of 20 years on each count. Appellant appeals th is judgment. We affirm.

1 See T EX
. P ENAL C ODE A NN . § 29.03(a)(3) (Vernon 2003).2 Factual and Procedural Background Appellant presents a single issue for our consideration. Because the issue raised by appellant does not touch upon the l egal or factual sufficiency of the evidence to support the convictions, we will limit our re citation of the facts to those that are germane to the issue. Appellant was indicted on four counts of aggravated robbery on March 25, 2008. On July 9, 2008, appellant’s trial couns el filed a motion suggesting appellant’s incompetency to stand trial, and requesting t hat the trial court ent er an order for the examination of appellant by a competent expert. The trial court entered an order to have appellant examined by Dr. Robert Morgan to determi ne appellant’s competency to stand trial. 2 Appellant was examined by Dr. R obert Morgan and Dr. Lucas Shaw. Based on the examination, the doctors reported back to the tr ial court that appellant was competent to stand trial. Subsequent to th e competency examinatio n, appellant’s trial counsel filed a request to have appellant ex amined regarding the i ssue of an insanity defense. 3 On October 29, 2008, the trial cour t ordered a second examination by Dr. Morgan on the issue of competency to stand tr ial. Notwithstanding the trial court’s order, Dr. Morgan examined appell ant concerning insanity on Ju ly 28, 2009. The report of this examination was filed with the dist rict clerk’s office on August 5, 2009. On August 17, 2009, appellant entered guilty pleas, to each of the four counts of aggravated robbery. After rece iving appellant’s guilty pleas the trial court ordered a pre-

2 See T EX
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. A NN
. ch. 46B. (Vernon Supp. 2009).
3 See T EX
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. A NN . ch. 46C. (Vernon 2006).3 sentence investigation 4 and set the hearing on punishment for August 31, 2009. During the punishment hearing, both Dr . Morgan and Dr. Shaw testifi ed about the results of the competency examination and th e examination conducted for purposes of an insanity defense. Each doctor testifi ed that appellant was competent to stand trial and that, at the time of commission of the indicted offens es, the appellant “was not suffering from a mental disease or defect such that he did not know that his conduct was wrong.” Both doctors did testify that appell ant suffered from various m ental health issues ranging from psychotic disorder not otherwise s pecified, poly-substance dependence, and malingering. Appellant’s fam ily also presented testimony regarding appella nt’s apparent mental health issues. Afte r hearing all of this evidence, the trial court sentenced appellant to four concurrent 20 year sent ences. It is from these judgments that appellant appeals. Appellant presents a singl e issue alleging that “the trial court abused its discretion in failing to give due weight and cons ideration to the mental disposition of the [appellant] and the possible effect of not having available the diagnosis of the unclassified psychosis to inform its determinat ion of the level of punishment to assess.” This issue is multifarious, at best, and makes it difficult fo r the Court to determine what action the trial court took or failed to take t hat led to appellant’s ri ghts being violated or the entry of an erroneous judgment. See T EX
. R. A PP
. P. 38.1(f). 5 However, we will consider the issue raised in light of the brief filed and try to determine, with reasonable

4 See T EX
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. A NN . art. 42.12(9) (Vernon Supp. 2009).
5 Further reference to the Ru les of Appellate Procedure will be by reference to “Rule ___.”4 certainty, the alleged error of which appellant complains. See Stults v. State , 23 S.W.3d 198, 205 (Tex.App.—Houston [14 th Dist.] 2000, pet. ref’d). Appellant appears to argue th at, based on the evidence presented during the punishment hearing, the trial court had a duty to stop the punishment hearing on its own motion, and order appellant be fu rther examined for purposes of an insanity defense. Additionally, appellant appears to contend that this court should change the law in the State of Texas to recognize “irresistible im pulse” as a defense to prosecution under the provisions of the insanity defense. We find no error in the procedure followed by the trial court and, therefore, we will affirm the trial court’s judgment. Raising the Insanity Defense
A criminal defendant who desires to rais e the insanity defense does so by following the guidelines set forth in chapter 46C of the Texas Code of Criminal Procedure. See T EX
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. A NN . ch. 46C. Under Texas law, insanity is an affirmative defense to prosecution. See T EX
. P ENAL C ODE A NN . § 8.01 (Vernon 2003), Martinez v. State , 867 S.W.2d 30, 34 (Tex.Crim.App. 1993) . Under the current statutory scheme, a criminal defendant is required to file a notice of in tent to raise an insanity defense at least 20 days before the case is set for trial. See T EX
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. A NN . art. 46C.051(b)(2). 6 This process must be met or the criminal defen dant will not be allowed to introduce evidence on the issue of insanity, absent good cause for failure to give the required notice. See art. 46C.052.

6 Further reference to the Texas Crimi nal Procedure Code shall be by reference to “art. ___.”5 In the case before the Court, appellant’s co unsel did not give the required notice. The record reflects that a report of the doctors’ second examinat ion of appellant was filed in the district clerk’s o ffice on August 5, 2009. This is within the 20 day period of the statute. See art. 46C.051(b)(2). However, appell ant’s trial counsel did not seek either a continuance or a ruli ng that good cause existed for not giving the requisite 20 day notice. Whether or not counsel should have done either is not an issue before this Court. Simply speaking, any claimed error relati ng to the trial court’s failure to consider evidence of appellant’s insanity defense wa s not preserved for our review. See Rule 33.1(a)(1)(A). As to appellant’s contention t hat the trial court should have sua sponte stopped the punishment hearing upon receiving evidenc e of appellant’s m ental health issues, appellant has presented no authorit y for that proposition. Although appellant likens that procedure to the procedure adopted for determi ning the competency of an individual to stand trial, such comparison is without any authority. 7 In fact, in ruling on the issue of the trial court’s duty to sua sponte order an examination for purposes of an insanity defense under the previous stat ute, our sister court has held that, since no notice was filed, there was no iss ue of insanity before the trial co urt and the trial court had no duty to sua sponte order any type of psychia tric examination. See Gomez v. State , Nos. 14-

7 Most of appellant’s argument regarding the sua sponte duty of the trial court is premised upon the proposit ion that “irresistible impulse” s hould be a part of the insanity defense in the State of Texas. However, “irresistible impulse” is not now, nor has it ever been, recognized as a part of the affirmative defense of insanity by the jurisprudence of the State of Texas. See Freeman v. State , 317 S.W.2d 726, 730 (Tex .Crim.App. 1958). For this court to include such a doctrine into the affirmative defense doctrine of insanity would involve this Court making the law and not simply insuring that the law is followed. See Rodriguez v. State , 953 S.W.2d 342, 353 (Tex.App.—Aus tin 1997, pet. ref’d) (citing Turner v. Cross , 18 S.W. 578, 579 (1892)). This we cannot do.6 99-00465-CR & 14-99-00466-CR, 2001 Tex.App. LEXIS 2094, at *9 -*12 (Tex.App.— Houston [14 th Dist.] Mar. 29, 2001, pet. ref’d) (not designated for publication). We agree with the Gomez court, and hold that the trial court has no duty to sua sponte stop the punishment hearing to order a psychiatric examination for purposes of an insanity defense when no timely notice of intent to pursue such a defense has been given. Accordingly, appellant’s issue as to the sua sponte duty of the trial c ourt is overruled. Conclusion Having overruled appellant’s contention, the judgment of t he trial court is affirmed. Mackey K. Hancock Justice
Publish. Campbell, J., concurring.