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 xotiember 5, 1940, direoted to 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‘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 contest. 
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 insanity, and said oonviotlon not set aside, who afterwards oommlte a orlminal offense nnd Is tried on said 

crirninel offense 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 judgarsnt and oc;nvlotlon Is 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 insane 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 insanity 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 therefor 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 deolded adversely to him by the court of Criminal Appeals of 

Texaa. 

Presumably, also, he made no request for a prior hearing upon hla sanity berora 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 presumpticn of 

sanity which the accused must overcome in a criminal c8se caases 

to exist and there arises a presumption of insanity whlich the 

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 

%lon is that 

pre aump1 naanity continues and the burden Af proof ia 

upon the State to show otherwise, 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 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 introduced in evldenoe, and, nonetheless, a judgment of convlction rendered againet him in such case would be void because 

at some time in the past the defendant had been adjudged lnsane? 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 himsupposed 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 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 suoh matters, declared: 

“It is more than -questionable as to whether we 

have any authority ov?r any trial court in such matters. 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 

'interpose such plea, it appears to ua same should 

have been advanced at that tim 0. 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 time of the triar was not submitted 

to the jury or passed on in any manner. *?le find nothing in the record in any way raising suoh Issue, either 

during the trial or antecedent thereto; the latter being 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 insanity 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 insanity 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 deliverance 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. 

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 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*(s adjudicated 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 presumption 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 oriminal cases where there is in evidence a-valid judgment or insanity 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 contrary.” (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 lnsane at the time. If he haa been adjudged insane and such judgment 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 oonviction 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&IO was 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 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 judgment of a court of superior jurisdiction 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 verdict oi guilt and a judgment of condemnation have been 

returned and:anterad 

both the issues ment i 

that action is res adjudicata of 

oned." 

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.t ii 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 **not guilty” 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. ?:ere it 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 presumption of sanity of the defendant would, in effect, be abrogated. 

@Ihe state would be compelled in evary case, as a matter of precaution, to establish the sanity of the defendant beyond a 

reasonable doubt lest there be In existence somawhere an unvacated judgment of insanity o f :*rtiich it h;ld no knowledge and, 

as a practical uotter, In the exercise OP diligence could not 
Ifonorable 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,pue is 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;ation from r,he o~inima of the oourt: 

,',dverti~ to the i;ussticn at ?mnd, ?t ir, therefore, 

the opinion or this fapnrtmont t.ktt the judgzant ot the Oistriat co:!rt cY x.1 i'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, 

only I 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 tihanthe 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:>on rte uctl.3 3r f3e 3lstrlct 
-L ,’ 

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