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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
Neither the Texas Penal Code nor the case law provides any definitions of “mental disease,” “mental defect,” or “severe.” Consequently, none is provided in the instruction.
The provision in Penal Code section 8.01(b) is, in some sense, a partial definition that excludes very limited situations from the defense. In fact, there are unlikely to be many cases in which there is evidence from which a jury could find that the defendant had a condition (or abnormality) that was “manifested only by repeated criminal or otherwise antisocial conduct.” Tex. Penal Code § 8.01(b). In most cases where such repeated conduct is shown, there will also be evidence that the underlying abnormality was manifested by other symptoms or signs. In any case, the Committee recommends including this exclusion only if the evidence is such that the jury could conclude that the abnormality was manifested only by conduct of the sort described.
The Committee considered whether other limited definitional instructions might be appropriate in some situations. Older cases, for example, suggest that an insanity defense could be based on delirium tremens, although this condition was the result of repeated and voluntary consumption of intoxicating substances. Erwin v. State, 10 Tex. Ct. App. 700, 704 (1881) (“The evidence tending, whether strongly or otherwise, to establish delirium tremens, the charge should have explained that species [of insanity], and applied the legal principles thereto. This should have been done clearly, distinctly and affirmatively.”). See also Thomas v. State, 177 S.W.2d 777, 778 (Tex. Crim. App. 1944) (jury instruction permitting insanity acquittal on basis of condition “resulting from the long continued use of alcoholic beverages” was not defective because it failed to specifically mention delirium tremens).
These holdings suggest that under current law a severe mental disease or defect may include a relatively settled condition even if that is the result of repeated instances of voluntary intoxication. If this is current law, that aspect of the definition of mental disease or defect may be so sufficiently specialized as to permit and perhaps require an instructional explanation.
The matter is both unsettled and unusual, the Committee decided, and thus it did not take a position on the issue.