Comment

The Committee considered at length whether to recommend jury instructions triggered by a defendant’s successful invocation of what is widely—although most likely inaccurately—called the “diminished capacity” doctrine. Ultimately the Committee decided not to formulate such instructions. The following discussion reviews the law of mental condition evidence disproving culpable mental state as it applies to jury instructions.

Jackson-Ruffin Doctrine—Mental Condition Evidence Disproving Culpable Mental State Is Admissible. In Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim. App. 2005), the court of criminal appeals made clear that, as a general rule, defendants can introduce relevant evidence in support of an argument that evidence of their mental impairment at least raises a reasonable doubt about whether they acted with the culpable mental state required by the charged offense.

Ruffin v. State, 270 S.W.3d 586, 595 (Tex. Crim. App. 2008), reaffirmed that Jackson makes admissible, as a general rule, “expert mental-disease testimony” that because of a mental illness the defendant did not have the culpable mental state claimed by the state. Ruffin held that the rule that such evidence is admissible is not limited to murder prosecutions. Ruffin, 270 S.W.3d at 596.

Despite this general rule, Ruffin also confirmed that such evidence may be inadmissible in a specific case for one or more of three reasons.

First, if the evidence “does not truly negate the required mens rea,” it is inadmissible. Ruffin, 270 S.W.3d at 596.

Second, a trial judge has considerable discretion to exclude such testimony pursuant to Texas Rule of Evidence 403 if the probative value of the evidence is substantially exceeded by the danger of unfair prejudice, such as jury confusion. Ruffin, 270 S.W.3d at 595.

Third, if the defense evidence consists of expert testimony, that evidence may be inadmissible under the evidentiary requirements for expert testimony. This might be the case, for example, “if the expert is insufficiently qualified, or the testimony is insufficiently relevant or unreliable.” Ruffin, 270 S.W.3d at 595–96.

In Jackson, the court noted that “Texas does not recognize diminished capacity as an affirmative defense i.e., a lesser form of the defense of insanity.” Jackson, 160 S.W.3d at 573. It did, however, then refer to “the diminished-capacity doctrine at issue in this case,” which it characterized as “simply a failure-of-proof defense.” Jackson, 160 S.W.3d at 573.

Ruffin did not use any “diminished capacity” terminology. It did not, however, offer an alternative term for what Jackson had described as a diminished capacity “doctrine.”

The Committee decided that the position of law discussed in these cases might best be described as a doctrine or rule that—subject to exception—mental “condition” evidence disproving or negating the required culpable mental state is admissible when offered by a criminal defendant. The bench and bar, however, have tended to continue to use the term diminished capacity, and the Committee recognized that it could not ignore the continued—albeit unfortunate—use of that phrase.

This rule is independent of the insanity defense. It may be invoked in a case in which no jury issue on insanity is raised, or it can be invoked as an alternative to the insanity defense. In theory, at least, in a case of the latter sort it might not prevent any criminal conviction, as would a successful insanity defense. The rule might, however, persuade the jury that the state failed to prove the defendant guilty of at least the charged offense, thus resulting in conviction of only a submitted lesser included offense.

Some language in the case law suggests that a defendant is not permitted under Jackson to argue (or introduce evidence tending to show) that at the time of the conduct charged he lacked the capacity to form the culpable mental state required by the charged offense. Such a reading of Jackson might require defense experts to testify only in terms of what mental state the defendant actually had or lacked and to avoid discussion of any lack of capacity to form particular states of mind.

Jury Instructions on Jackson-Ruffin Actually Given. If mental impairment evidence is admitted under Jackson and Ruffin, a jury might be instructed on the defensive theory on which the evidence was admissible. This has been done in several recent cases.

In Ward v. State, No. AP-75750, 2010 WL 454980 (Tex. Crim. App. Feb. 10, 2010) (not designated for publication), the trial court admitted some defense evidence under Jackson as tending to show the capital murder defendant, when he intentionally killed the victim, did not do so with the culpable mental state required to make the killing one in the course of committing obstruction or retaliation. The trial judge apparently concluded that the jury needed some instructional guidance on the Jackson matter. With the consent of both parties, and—according to the court of criminal appeals’ opinion—“to prevent the jury from considering the evidence for insanity or competency,” the judge instructed the jury:

Ward, 2010 WL 454980, at *5. On appeal, no issue was raised concerning the propriety of this instruction. The unreported decision of the court of criminal appeals does not, of course, approve this instruction.

In Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010), the defendant was charged with capital murder of a peace officer. The trial court admitted expert testimony concerning the defendant’s alleged mental impairment. The defendant objected to the trial judge’s proposed instruction “for failing to instruct the jury that evidence of mental illness may be considered in determining whether or not he acted intentionally or knowingly.” Mays, 318 S.W.3d at 380. The trial judge then added to the instruction:

Mays, 318 S.W.3d at 380. The trial judge apparently attempted to convey to the jury that it could not consider the defense evidence as tending to show lack of the required culpable mental states because the defendant lacked the capacity to form those states.

On appeal, Mays challenged the instruction given. He argued that “the trial judge erred by instructing the jury that it was not permitted to consider mental-illness evidence that appellant ‘lacked the capacity to act intentionally or knowingly.’ ” Mays, 318 S.W.3d at 380.

The court of criminal appeals concluded that the defense evidence tended to show only why the defendant intentionally or knowingly killed the victims and had no tendency to prove that he did not kill them either intentionally or knowingly. It therefore raised no issue under the Jackson line of cases. The court then commented: “[A]ppellant was not entitled to any jury instruction concerning that evidence. But having requested such an instruction, appellant has not shown that he suffered any harm when the trial judge gave the jury a legally correct, if unnecessary, instruction concerning the use of that evidence.” Mays, 318 S.W.3d at 382.

Other Alternative Instructions Considered. The Committee considered a variety of possible approaches to instructing juries on the Jackson rule. It noted, of course, the instructions actually given in Ward and Mays.

Several other possible instructions were also considered. One might be appropriate in any case in which evidence is admitted under Jackson and Ruffin but no issue on insanity is raised:

Another might be appropriate if the jury is being instructed on insanity. It would serve to alert the jury to the separate issues on which the evidence might be relevant:

Permissibility of Instruction. If mental impairment evidence is admitted under Jackson and Ruffin, would Texas law permit a jury to be instructed regarding the defensive theory on which the evidence was admitted and under which the jury could consider it?

Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998), suggests that a jury instruction on this defensive theory is prohibited by article 36.14 of the Texas Code of Criminal Procedure as a comment on the evidence. This is because the defensive theory—the “failure-of-proof” defense—is not explicitly provided for by statute.

Giesberg may, however, have some flexibility. Perhaps some nonstatutory defensive theories, possibly as raised in some situations, pose such unusual risks of jury confusion that an explanatory instruction is permissible and desirable.

In Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), the court developed Giesberg and indicated generally:

Walters, 247 S.W.3d at 212.

In Walters, however, the court did give significance to its conclusions that the instruction there at issue (on prior verbal threats as relevant to self-defense) “is a marginally ‘improper judicial comment’ because it is simply unnecessary and fails to clarify the law for the jury.” Walters, 247 S.W.3d at 213–14. This suggests that an instruction providing necessary clarification of the law for the jury, even if not based on a current statutory provision, would be at least acceptable.

The case law contains some indications otherwise. In Jackson, the court of criminal appeals repeated a prior suggestion in Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995), that at least some type of instruction on the law recognized in Jackson would be inappropriate:

Jackson, 160 S.W.3d at 573 (citations omitted). Penry appears to hold that an instruction that the jury should consider such evidence is not required. It certainly does not hold that an instruction that the jury may consider such evidence is impermissible.

If a jury is instructed on insanity and the defendant also relies on diminished capacity, that jury may benefit from—or even need—some guidance on distinguishing the diminished capacity issue from the insanity issue. The argument that article 36.14 at least permits a jury instruction mentioning diminished capacity and distinguishing it from insanity is strongest in these situations. Conceptually, the instruction can be regarded as part of the instruction on the statutory affirmative defense of insanity rather than as based on the nonstatutory defensive theory legitimized by Jackson and Ruffin.

The Committee was uncertain about the significance of the court of criminal appeals’ discussion in Mays. What did the court mean when it commented that the instruction given was “legally correct”? Perhaps the comment referred only to that part of the instruction saying, “[Y]ou may consider any mental condition, if any, of the defendant, that he did or did not act intentionally or knowingly in committing the alleged offense.” Or perhaps it also referred to the last part: “[B]ut you cannot consider any mental condition, if any, that the defendant lacked the capacity to act intentionally or knowingly.” Mays, 318 S.W.3d at 380.

Mays characterized the instruction given as “legally correct” but suggested it was “unnecessary.” Mays, 318 S.W.3d at 382. It gave no hint that some or all of the instruction might have been a prohibited comment on the weight of the evidence. Some members of the Committee regarded Mays as signaling that any instruction is undesirable and perhaps prohibited. Others read Mays as perhaps carefully avoiding any confirmation of the Penry indication that an instruction is barred. They considered the court’s characterization of the instruction given as “unnecessary”—but with no additional comment that it was inappropriate or erroneous—as leaving open whether such an instruction might be appropriate.

Committee’s Position. Some members of the Committee believed the case law makes clear that any instruction would be a prohibited comment on the evidence. Others were not convinced of that but believed that an instruction—even if permissible—is undesirable as unnecessary and potentially confusing to jurors. Still others believed that an instruction is desirable and might well be held permissible under what the courts would recognize as an exception to the Giesberg rule.

In light of this division among the members, the Committee decided that it could not make any recommendation on this matter.