From the Criminal District Court No. 1 of Tarrant County
Jack M. Langdon, Associate Justice.
This case is one seeking a judgment for restoration of sanity under Art. 46.02, Sec. 3(b), Texas Code of Criminal Procedure.
For purposes of the opinion it must be accepted as undisputed that on the evening of September 10, 1964, a young mother and her two infant children were abducted in the City of Fort Worth, Texas, and driven to a remote area in the Trinity River bottom where appellant as the lone assailant raped the woman. When she cried he stabbed her repeatedly with a knife, causing serious bodily injury, including the loss of an eye, and then he threw the two little boys in the river drowning them. Appellant was subsequently indicted for the murder of the two children and the rape of the woman (Causes 70342, 70343 and 70344, The State of Texas v. Charles Roy Hefley, in the Criminal District Court of Tarrant County, Texas). On May 17, 1965, on motion and affidavit to have his sanity tried prior to trial under said indictments, the appellant was found by a jury to be insane at the time of said offenses and at the time of trial. He was found to be insane in the above numbered causes and in Causes Nos. 76727, 76728, 76801, 76802 and C-2180.
The jury finding of "insane" at time of the alleged offenses constituted an acquittal of the defendant of such offenses. No appeal was made from the judgment based upon the above findings and the appellant was accordingly committed to the Maximum Security Unit, Rusk State Hospital, Rusk, Texas.
Thereafter, on January 27, 1971, the Superintendent of Rusk State Hospital notified the committing court, pursuant to Art. 46.02, Sec. 3(b), Texas Code of Criminal Procedure, that in his opinion the appellant is now sane. This notification opened the door for appellant, Charles Roy Hefley, to again have a trial in a post-commitment proceeding to determine his sanity. At the conclusion of the testimony the trial court, being of the opinion that a fact issue was raised, submitted the issue of sanity to the jury under unchallenged instructions and on July 16, 1971, the jury found that he was insane. Judgment for the State was entered in accordance with the jury's verdict.
This appeal based upon seven points of error is from that judgment.
By his first two points the appellant contends that the trial court erred in not granting his motions for an instructed verdict and a new trial. These points are based on no evidence and insufficient evidence.
We believe the issues involved on this appeal will be better understood if the pertinent provisions of Art. 46.02, V.A.T.S., Sec. 3, Code of Criminal Procedure, are here set forth before discussing the points of error raised by the appellant because the trial was conducted and the court's charge was prepared pursuant to the provisions of this statute which describes in detail the procedure to be followed in a post-commitment jury trial in the committing court. The provisions pertinent to this appeal read as follows:
"(1) The State of Texas shall be represented by the District Attorney or County Attorney of the county from where the person was originally committed. . . .
"(2) The Rules of Civil Procedure shall apply to the selection of the jury, the court's charge to the jury and to all other aspects of the proceedings and trial except when inconsistent with the provisions of this Section.
"(3) Both parties to such proceedings and jury trial shall have the right to appeal the judgment of the committing court to the appropriate Court of Civil Appeals, and such appeals, if any, shall be controlled by the Rules of Civil Procedure, and the Rules of Civil Procedure shall determine when the committing court's judgment is final.
"(4) The burden of proof shall rest on the person committed, by a preponderance of the evidence, and the jury shall be instructed by the court that a person is sane if they believe from a preponderance of the evidence that the person's mental condition is such that the person does not require hospitalization in a mental hospital for the person's own welfare and protection or for the welfare and protection of others." Art. 46.02, V.A.T.S., Sec. 3(d), Code of Criminal Procedure.
Each of three psychiatrists called as witnesses by the appellant testified that in his opinion the appellant was "sane." One added that the appellant was not affected with mental illness and another that he is not suffering from schizophrenia. A fourth psychiatrist, Dr. Harold B. Mindell, called by the State, did not testify as to the appellant's present mental condition. He testified that in 1965, "It was my opinion that the patient at that time was suffering from a major mental illness." The State presented the testimony of a police officer (detective), who had been a member of the Police Department of the City of Fort Worth, Texas, for a period of 23 years. At the time of his investigation of the alleged offenses committed by the appellant in 1964 and again shortly before the post-commitment trial here under consideration this detective had the opportunity to observe and to converse with appellant. He testified that he could not detect any change in him. Thus, according to the testimony of this officer of 23 years experience, if the appellant was insane at the time he committed the alleged offense he had not changed and therefore was still insane. The above summary of the testimony of the three psychiatrists called by the appellant was elicited on direct examination of the witnesses. Each of them in turn was vigorously cross-examined by the attorneys for the State.
The trier of the facts, the jury in this case, "could consider the evidence produced upon the cross-examination just the same as it could on direct examination." United States Fidelity and Guaranty Co. v. Jordan, 278 S.W.2d 569 (Amarillo Civ. App., 1955, dism.).
In addition to the above testimony the jury had the opportunity to observe and to study the general appearance, demeanor, actions and reactions of the appellant who was seated at the counsel table during the trial of the cause. The members of the jury had more concentrated time to observe the appellant than did some of the psychiatrists whose opinions were based in part upon their observations of him. As to the demeanor and appearance of the appellant during the trial see § 1532, McCormick and Ray, Texas Law of Evidence, 2d Edition, Ch. 28, "Circumstantial Evidence," infra.
The argument of the appellant that he is sane as a matter of law because each of the three psychiatrists called as a witness said that in their opinion he was sane and that no psychiatrist for the State testified that he was insane is untenable. If this were not so a determination of the issue of sanity would be left solely in the hands of psychiatrists and the important function of the jury to make such determination would be vitiated.
The issue of sanity is a question of fact to be determined by the jury. The jury is the judge of the credibility of the witnesses and the weight to be given their testimony and to the opinions expressed by them. Wenck v. State, 156 Tex. Crim. 50, 238 S.W.2d 793 (Tex.Ct. of Crim.App., 1951). See also Tuchin v. Chambers, 439 S.W.2d 849 (Fort Worth Civ.App., 1969, ref., n.r.e.).
"In situations such as this where a jury returns a negative answer to an issue upon which the proponent has the burden of proof, the jury's negative answer need not be supported by affirmative evidence." Smith v. Safeway Stores, Inc., 433 S.W.2d 217, 218 (Tyler Civ.App., 1968, writ ref., n.r.e.); Walgreen Drugs, Inc. v. Welch, 442 S.W.2d 842 (Houston Civ.App., 14th Dist., 1969, ref., n.r.e.).
". . . Our Supreme Court has on many occasions held that the jury in determining facts is not bound by the opinion of witnesses, Simmonds et al. v. St. Louis, B. & M. Ry. Co., 127 Tex. 23, 91 S.W.2d 332; Fry v. Dixie Motor Coach Corp., 142 Tex. 589, 180 S.W.2d 135; and that opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345; Board of Firemen's Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965. . . ." Pitchfork Land and Cattle Company v. King, 335 S.W.2d 624 (Amarillo Civ.App., 1960, reversed and rendered in part, and affirmed in part at 162 Tex. 331, 346 S.W.2d 598, 1961); Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155 (1945); Weatherly v. Longoria, 292 S.W.2d 139 (San Antonio Civ. App., 1956, ref., n.r.e.); and Lee v. Howard Broadcasting Corporation, 305 S.W.2d 629 (Houston Civ.App., 1957, no writ hist.).
Associate Justice Pope of the Texas Supreme Court, while serving on the San Antonio Court of Civil Appeals, authored the opinion in the case of Muro v. Houston Fire & Casualty Insurance Co., 329 S.W.2d 326 (San Antonio Civ.App., 1959, ref., n.r.e.). Because of its applicability to the facts of this case we will substitute and underline ...