OFFICE OF THE ATTORNEY GENERAL OFTEXAS
AUSTIN

XonorableReginald District Attorney HuntsviJle,Texas

Dear Sirr OpinionNC. O-2872 Re: ,Jhethera judgment of conviotion may be ooLlaterallpatzaoked in I' themanner and under the cirouz- ' 'stancssdescribed.

Your letter of xotiember 5, 1940, direotedto this Department,reads.!: part a8 follows~ .' ~-Y y-V.A. Briggs,an inma& of the Terse Fenitentlafp, has..

filed appllostlon for his release from prison‘upona writ ot habeas corpus, allsglng that the -jndgmnt and sentenos of conviction is void by ‘xeasonof the fact that at the timehe was oonvlcted he had been Rrsviouslg adjudged insane, and that eaid judgmenthad not;been set aside.

*Aa 1 undbrstandthe case Briggs was adjudged insane in the County Court of Harris County, Teraa, about 1921,which judgmenthad not been set aside in any manner at the time of hia trial in 1927,whioh resulted in his incarcerationin the Penitentlary,and" being the judgmentEnd sentmoe involved in this contest.Honorable Reginald Braoewell, Page 2

“The casewherein Briggs was conviotedand la now serving time Is reported in 2 9. d. (Zd) 23S.
*I have a oertiried 00~7 or the charge of the Court thatwee given in that ease and no issue of insanity wae submltted to the jury, It evidentlynot 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 legalprlnoipel involved in this oase la whether or not a personwho has been oonviotedof insanity,and said oonviotlonnot set aside,who afterwards oommltea orlminal offense nnd Is tried on said crirninel

offenseand oonvloted, and not having raised the issue ot insanity in hls main trial, can afterhis imprisonmentbe released upon a writ of habeas oorpus, alleging that the judgarsnt and oc;nvlotlon

Is void, by reason or the iaot thathe was legally Insaneat 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 simplythe queatlon or a collateralattack, by a habees oorpus proceeding,upon a judgmentof conviction,grounded upon the proposition that in virtue of an unvaoated judgmentof Insanity against the defendantmany years before, his later oonvlotlon ot a orlmlnal offense lo void, notwithstandingths failure of the acoused to interposethe defenoe of insanity and to establish the judgment of insanity upon the trial of the orininel oaae.

The habeas corpus applioetlondesorlbed In pour letter is not, of course, one seeking to establish the present ineanitp of Rriggs, In otherwords, insanity after oonvlctlon, as contemplatedby Article 921, et seq., of the Code of Grim- b lnal Prooedure.

The preolse questionwhich 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 personwho becomes insane after he committedan offense shallbe tried for the samewhile In such oondltion. No person who beoDmes insane after ho la found guilty shall be punishedwhile In suohoond1tion.v

Thls statute simplymeans that insanityat the time of the oommlsslonof a orime Is a defense thereto, that insanity at the time of the trial shall precludea trial of the orimlnal offensewhile the aoouged Is in snob condition,and that insanity after conviction shallpreolude punishment therefor while the oondltion oontlnuea.

Evidence of the first, as a defense to the criminal oharge,may be introducedunder the plea of “notguilty*. Article 521, Code of Crlmlnal Procedure.

The secondauthorizes and contemplates, upon timely request therefor, that the aooused is entitled to and should be given a separatehearing on the question of his Insanityprior to his trial upon the criminal oharge. Rloe v. State, 120 3. V?. (Zd) 388, and oaaes olted.

The thirdmay be taken advantage of after oonvictton of a orimlnal offenseunder the procedureoutlined 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,foregoingwas or la being avalled of by Brlggs. 31s prior adjudication of insanitywae 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 easewherein oertain questions in no sense involvinghis alleged insanitywere deolded adversely to him by the court of CriminalAppeals of Texaa. Presumably,also, he made no request for a prior hearing upon hla sanityberora his trial upon the robbery charge;

Be does not at this time in his applloatlon for release upon a writ of habeas corpus claim that he Is now insane.

It is recognized, of course,that the presumpticnof sanitywhich the accusedmust overcome in a criminal c8se caases to exist and there arisesa presumptionof insanitywhlichthe State must overoome upon the showingby the accused of s prior and unvacated judgment Of insanityagainst him.Honorable Reginald Bracewell, Rage 4

“In Texas the rule is that, khere insanity has been once shown to existas by judgment 0rthe court the %lon is that preaump1 naanity continues and the burden Af proof ia upon the State to showotherwise,and the jury must be so lnformed." 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. (2d) 136.State, 46 S. W. (2d) 991; olover v. State, 69 S. ?J.

Does thismean, however, that the insanity of the accused need not be interposedby him upon his trial, such defense not established,a prior judgmentof insanity not introduced in evldenoe,and, nonetheless, a judgmentof convlction rendered againet him in such case would be void because at some time in the past the defendanthad been adjudged lnsane? We think not.

In Emerson v. State, 59 S. 2. (26) 117, therewas 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 connectionwith the other parts of the reaord,we find nothing to lead us to oonolude that upon the trial of this ease any plea of insanitywae Interposed. Under the merciful wovlsiona of our statutes.one cannot be,trfedwhile in e oonditlon of snsanity;but in order to avail himsupposederror In putting him

Ex Farte MoKenzie, 2S S. X. (2d) 133, involved an originalapplication for a writ of haveas corpus based on an affidavit stating that the applicant ‘~?a insane at the time of his trial and oonviction of murder. The court in questioning its authority over the trial court In suohmatters, declared:

“It ismore than -questionable as to whetherwe have any authority ov?r any trial court in suchmatters. 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 revealedby said record indioates aotivlty and participation in the trial by applioanthb3eir. 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 [Esn phasis 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 timeof the triar was not submitted to the jury or passed on in any manner. *?lefind nothing in the record in anyway raising suoh Issue, either during the trial or antecedent thereto; the latter being ordinarilythe propertime to have instituted such inquiry, if 8 dsol~lon of same be desired. As far as we know, appellantwas represented by attorneys of his
own ohooslng,and we are Impressedwith a belief that, had affidavit been mad8 prior tothis trial setting up present lnsani~ty, or evidencepresented suggesting insanity at the time of trial, a jury would have been impanefed for the determinationof 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 insanity here,and certainly he WRB not called on, as said in Sodermanv. 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 Sodermsnv, State, 260 S. ?V.607, 611, it was held: -During the trial one of the witnesses for the appellant sxprdssed the opinion that the appellantwas insane at the time. After verdict, for the first time, appellant, in hismotion for a new trial, complains of the failure of the courtto cell another jury and : have the issue of present insanity triedpreliminary to submittingthe issue of appellant'sguilt to the jury. If demand for a separate trial upon the issue Of present insanity had beenmade 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 juryhad been impaneledand chargedwith the deliverance of the apl;ellant, to atop the trial and begin, Honorable Reginald Bracswell, ?aee 6

another would be open to sarlous question. The statute8do 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 obvlouareason that onewho la insan might not be in a position to progerly oonduct hls trial upon the Issue of guilt or innooenco. Article 39, P.
kl. *Ramirez v. State, 92 Tex. Cr. R. 38, 241 S. ;'r. 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 offensewith whioh the accusedwas charged cannot be successfullyurged 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 principlewhich they declare is that an accused person must assert any right arising from his alleged insanity at the proper time. Insanity 13 not a permanentcondition under the law. Rotwithstandinga perBon*(s adjudicated insanitySt a prior time, the continuanoe of the conditionand 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 presumption of insanity arisesand the burden of proof changes upon the showing oi a prior end unvacated judgmentof insanity.

It was aeid in Klzer v. State, supra. that "in oriminal caseswhere there is in evidence a-valid judgmentor insanity aaainst the accusedat thetime or the commlealonof the ofre&e charged, the State must prove beyond a reasonable doubt that at such time the acoueedwas sane end the shifting ot the burden or proof in the instant 0~88 from the State to the defendantmay 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 casewas 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-hearingwe 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 judgmenthad 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 defendantwas presumed to be insaneuntil the State showedbeyond a reeeoneble doubt to the contrary.” (Emphesieoure)
Each of the foregoingcasea, It seems,recognize the proposition that it is incumbentupon theaccused to establish the existence of e prior unvacated judgmantof insanity before and whereby he may take advantage thereor.

It may thereforebe 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 onewhich must be asserted by the defendantupon his trial. Ii he has 

### neverboan adjudged Insane, he must show by a preponderanceof the evidence that he wae lnsane at the time. If he haa beenadjudged insaneand such judgment has not been set aside or vacated, the sccusedmay, by establishingthis judgmentbefore the court, secure to himself the advantage or thepresumption of insanitywhich the State must overcome. In either event, hoaever, the defendantmust Interpose his plea of insanity In the requiredmanner; there is no intimation in the reported cases that he may absolutely rail to do so and subeequentlyraise the issue, in a collateral attack upon the judgment or conviction.

Jioreover,

a judgment or convictlon is rea adjudiceta of the Issues necessarilycomprehended in the trial and oonviction of a person for violating the criminal laws. One 

### 0r these issues is that or the sanityof the defendant for the obvious
reason that the law declares that one V&IO was insane at the time of the commission of an act, otherwisea criminaloffense, may not be punished therefor%

This was clearly stated by the Supreme Court of Meslssfppi in kiitchell v. State, 179 Bias. 814, 176 SO. 743, 121 A. L. R. 258, as follows:

"It has long been a settled prinCipl8 of the Common law that 3 judgmentof a court of superior jurisdiction is conclusiveby way of res sdjudicata of all those Issues involvedin 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 particularissue itwas neoessary for the court and jury to have deoided that issue in order to warrant the verdict and judgmentxhlch 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 sufficientmental soundnese to be held to criminalacoountabilitgand to be subject to a trial therefor, with the result that when a verdict oi guiltand a judgment of condemnationhave been returned and:anterad both the issuesmenti that action is res adjudicata of oned."

The elementary prinoiple,embodied in Artiale 34 of the Penal Code, thatan insane personmay 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 insaneat 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 **not guilty” authorizes the introductionof avidonoe by the defendant on the questionof his insanity. If he does not avail himseli of such deiense by making the requisite proof thereof, hemay not subsequently, in a collateralproceeding, successiullyattack the judgment of oonvictionagainst him on the basis of his alleged insanity at the time o? the trial or the commission of the offenee.

A moment*s refleotionwill reveal theneoeseity and propriety oi thisrule. ?: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 

### proceedingattack the judgmentci convictionas voidbecause of the exlstenoe of'extraneousfaots.

Furthermore, if an outstanding judgment of insanity against the accused would render a judgment of convlotionvoid, although not established in ovidenae, the rule of the presumption of sanity of the defendantwould, in effect, be abrogated. @Ihestate would be compelled in evary case, as a matter of precaution, to establish the sanity of the defendantbeyond a reasonabledoubt lest there be In existence somawherean unvacated judgment of insanity of :*rtiich it h;ld no knowledge and,
as a practicaluotter, In the exercise OP diligence could notIfonorable 3eFinnld 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 properremedy to socure the releeas of ::person aonvloted 

### 3ra orinamhlls **at** large c.ltr,r

?lr esceps from **an** 

### Insaneeeylu~, 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;ation from r,he

o~inima of the oourt:

,',dverti~

to the i;ussticn at ?mnd, ?t ir, therefore, the 

### opinion or this fapnrtmontt.kttthe judgzant ot the Oistriat co:!rt

cY x.1i'aac

County 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 1x1 Virtue, onlyI of a prior unvaoated JuJ~mnt of inmnitp aFeln8t l?riage which s/rue

t3t befo,re

the court in the trtzl of the criuilnel
ease. ,;acordir#lp. it in our opinion tihant he described ap- ~llcsticn of t. ;/.3ri;;gs:‘*ir L-i: raleooe frcm :xisonupn e writ of hbea:: cxv?us, ;':ladin the ,Xstrlct ;:c;urt OS3ilisr “,ountp, Texm, should be refuoed.

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rte uctl.3 3r f3e 3lstrlct-L

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