OPINION
Opinion by
Chief Justice MORRISS.
Although doctors had told seventy-three-year-old William Thomas Lantrip, Sr., not to drink, because drinking was “interactive” with a decades-old brain injury, Lantrip regularly consumed much alcohol.
On Good Friday, 2009, after drinking at least half a case of beer, Lantrip shot his neighbor Kenny Gordon in the back, a wound ultimately proving fatal.
From the resulting conviction and life sentence for murder, Lantrip appeals. We affirm
the trial court’s judgment because (1) Lantrip
did not prove he was insane; (2) Lantrip was not entitled to admonishment regarding his trial testimony; (3) no newly discovered evidence entitles Lantrip to a new trial; and (4) at trial, Lantrip was not entitled to be dressed, as he chose, in camouflage clothing.
(1) Lantrip Did Not Prove He Was Insane
Lantrip claims error in the jury’s rejection of his affirmative defense of insanity. He claims the State failed to rebut Lantrip’s proof. We cannot say the jury’s rejection of his asserted defense was error.
Insanity is an affirmative defense. A defendant asserting the defense must prove “that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Tex. Penal Code Ann. § 8.01(a) (Vernon 2008). In a jury trial, the issue of the defendant’s sanity may be presented to the jury
only if the issue is supported by competent evidence. Tex.Code CRIM. PROC. Ann. art. 460.151(a) (Vernon 2006). Defendants are presumed to be sane and the State carries no burden to prove sanity.
Manning v. State,
730 S.W.2d 744, 748 (Tex.Crim.App.1987);
Sims v. State,
807 S.W.2d 618, 626 (Tex.App.-Dallas 1991, pet. ref'd). A defendant asserting the affirmative defense of insanity bears the burden of proof.
Meraz v. State,
785 S.W.2d 146, 150 (Tex.Crim.App.1990). To succeed on such claim, the defendant must prove by a preponderance of the evidence that he or she was insane during the commission of the offense. Tex. Penal Code Ann. § 2.04 (Vernon 2003);
Martinez v. State,
867 S.W.2d 30, 33 (Tex.Crim.App.1993). Insanity is not established by a defendant’s claim to have been unconscious or semiconscious during the offense.
Mendenhall v. State,
77 S.W.3d 815, 818 (Tex.Crim.App.2002).
Where a defendant bears the burden of proof on an affirmative defense such as insanity, the standard of review is whether, after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.
Meraz,
785 S.W.2d at 155.
Lantrip took the stand in his case-in-chief to assert his defense of insanity. He described how, in his twenties, he had fallen from a moving truck and struck his head on a rock. As a result, he began to suffer blackouts and severe headaches, including migraines. During this period, he was in the Marine Corps. Lantrip said at one point he was confined to a mental ward for six months after pulling a pistol on his commanding officer. Some of Lan-trip’s military medical records were ad-, mitted into evidence, including a 1957 document which included the following diagnosis:
Paranoid schizophrenia, in partial or almost complete remission at the present time but manifested'just before admission by very critical and emotionally charged display of feelings toward his own family. Also, manifested by general paranoid tendency toward everyone when he gets to feeling threatened. Treated. Improved_Degree of psychiatric impairment: Minimal to moderate at present.
Lantrip eventually received an honorable discharge. Because he was found to have a 100% disability, his mother was made his guardian. His disability rating was later lowered to 70%.
In his testimony, Lantrip detailed for the jury his history of violent escapades, including shooting, three times, a man who had been picking a fight with him in 1956; the last two shots were after Lantrip had succeeded in getting his attacker off of him. In 1964, he shot the car of a man reportedly caught on a date with Lantrip’s wife, and, when tackled by someone to stop him, also shot his wife’s sister in the leg, causing her to lose the limb. In 1969, he fired several shots into a house occupied by his ex-wife and her brother, because he believed they were engaged in incest in front of Lantrip’s children. In 1986, Lan-trip repeatedly stabbed a man he thought was attacking him with a knife, although it later turned out the man had no knife.
As for the incident leading to Gordon’s death and Lantrip firing at the deputies, Lantrip told the jury he did not remember any of it. He said he could not remember events from April 9, the day before the shooting, or from April 10. He claimed that his lack of memory of the events was evidence that he was insane at the time. He conceded, based on other witnesses’ testimony, he had been drinking April 10, but could not remember how much. He also testified he “limited” his drinking during “work hours” to “no more than half a case a day.” However, State’s psychologist Thomas Allen testified that Lantrip told him he drank a case of beer a day and that Lantrip knew he was an alcoholic. Lantrip told Allen it was his practice to begin drinking at 4:00 a.m. Several witnesses testified that, on the day of the shooting, Lantrip was very intoxicated, that he was staggering and having great difficulty standing to the point he was using his shotgun as a cane and to help him stand. Two witnesses, Lamkin and neighbor Joseph Hudson, described Lan-trip as “mean” when he was drinking. Lantrip admitted that doctors had told him not to drink because alcohol was “interactive” with his brain injury. Allen testified lack of memory of the events surrounding the shooting could have been the result of Lantrip’s heavy drinking or of trauma from being shot by the deputy. Allen added that trauma-induced amnesia was more likely in a heavy drinker.
Men opined that Lantrip was not insane at the time of the shooting and was able to discern right from wrong. Men cited, as bases for his conclusion that Lantrip could tell right from wrong, that Lantrip told Men he would pay a neighbor to drive him around so as not to get caught drinking and driving and that Lantrip was reported as threatening to kill Lamkin if he called the police to report Lantrip’s earlier threatening behavior. Men interpreted this conduct as indicating an awareness of the wrongfulness of Lantrip’s actions.
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OPINION
Opinion by
Chief Justice MORRISS.
Although doctors had told seventy-three-year-old William Thomas Lantrip, Sr., not to drink, because drinking was “interactive” with a decades-old brain injury, Lantrip regularly consumed much alcohol.
On Good Friday, 2009, after drinking at least half a case of beer, Lantrip shot his neighbor Kenny Gordon in the back, a wound ultimately proving fatal.
From the resulting conviction and life sentence for murder, Lantrip appeals. We affirm
the trial court’s judgment because (1) Lantrip
did not prove he was insane; (2) Lantrip was not entitled to admonishment regarding his trial testimony; (3) no newly discovered evidence entitles Lantrip to a new trial; and (4) at trial, Lantrip was not entitled to be dressed, as he chose, in camouflage clothing.
(1) Lantrip Did Not Prove He Was Insane
Lantrip claims error in the jury’s rejection of his affirmative defense of insanity. He claims the State failed to rebut Lantrip’s proof. We cannot say the jury’s rejection of his asserted defense was error.
Insanity is an affirmative defense. A defendant asserting the defense must prove “that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Tex. Penal Code Ann. § 8.01(a) (Vernon 2008). In a jury trial, the issue of the defendant’s sanity may be presented to the jury
only if the issue is supported by competent evidence. Tex.Code CRIM. PROC. Ann. art. 460.151(a) (Vernon 2006). Defendants are presumed to be sane and the State carries no burden to prove sanity.
Manning v. State,
730 S.W.2d 744, 748 (Tex.Crim.App.1987);
Sims v. State,
807 S.W.2d 618, 626 (Tex.App.-Dallas 1991, pet. ref'd). A defendant asserting the affirmative defense of insanity bears the burden of proof.
Meraz v. State,
785 S.W.2d 146, 150 (Tex.Crim.App.1990). To succeed on such claim, the defendant must prove by a preponderance of the evidence that he or she was insane during the commission of the offense. Tex. Penal Code Ann. § 2.04 (Vernon 2003);
Martinez v. State,
867 S.W.2d 30, 33 (Tex.Crim.App.1993). Insanity is not established by a defendant’s claim to have been unconscious or semiconscious during the offense.
Mendenhall v. State,
77 S.W.3d 815, 818 (Tex.Crim.App.2002).
Where a defendant bears the burden of proof on an affirmative defense such as insanity, the standard of review is whether, after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.
Meraz,
785 S.W.2d at 155.
Lantrip took the stand in his case-in-chief to assert his defense of insanity. He described how, in his twenties, he had fallen from a moving truck and struck his head on a rock. As a result, he began to suffer blackouts and severe headaches, including migraines. During this period, he was in the Marine Corps. Lantrip said at one point he was confined to a mental ward for six months after pulling a pistol on his commanding officer. Some of Lan-trip’s military medical records were ad-, mitted into evidence, including a 1957 document which included the following diagnosis:
Paranoid schizophrenia, in partial or almost complete remission at the present time but manifested'just before admission by very critical and emotionally charged display of feelings toward his own family. Also, manifested by general paranoid tendency toward everyone when he gets to feeling threatened. Treated. Improved_Degree of psychiatric impairment: Minimal to moderate at present.
Lantrip eventually received an honorable discharge. Because he was found to have a 100% disability, his mother was made his guardian. His disability rating was later lowered to 70%.
In his testimony, Lantrip detailed for the jury his history of violent escapades, including shooting, three times, a man who had been picking a fight with him in 1956; the last two shots were after Lantrip had succeeded in getting his attacker off of him. In 1964, he shot the car of a man reportedly caught on a date with Lantrip’s wife, and, when tackled by someone to stop him, also shot his wife’s sister in the leg, causing her to lose the limb. In 1969, he fired several shots into a house occupied by his ex-wife and her brother, because he believed they were engaged in incest in front of Lantrip’s children. In 1986, Lan-trip repeatedly stabbed a man he thought was attacking him with a knife, although it later turned out the man had no knife.
As for the incident leading to Gordon’s death and Lantrip firing at the deputies, Lantrip told the jury he did not remember any of it. He said he could not remember events from April 9, the day before the shooting, or from April 10. He claimed that his lack of memory of the events was evidence that he was insane at the time. He conceded, based on other witnesses’ testimony, he had been drinking April 10, but could not remember how much. He also testified he “limited” his drinking during “work hours” to “no more than half a case a day.” However, State’s psychologist Thomas Allen testified that Lantrip told him he drank a case of beer a day and that Lantrip knew he was an alcoholic. Lantrip told Allen it was his practice to begin drinking at 4:00 a.m. Several witnesses testified that, on the day of the shooting, Lantrip was very intoxicated, that he was staggering and having great difficulty standing to the point he was using his shotgun as a cane and to help him stand. Two witnesses, Lamkin and neighbor Joseph Hudson, described Lan-trip as “mean” when he was drinking. Lantrip admitted that doctors had told him not to drink because alcohol was “interactive” with his brain injury. Allen testified lack of memory of the events surrounding the shooting could have been the result of Lantrip’s heavy drinking or of trauma from being shot by the deputy. Allen added that trauma-induced amnesia was more likely in a heavy drinker.
Men opined that Lantrip was not insane at the time of the shooting and was able to discern right from wrong. Men cited, as bases for his conclusion that Lantrip could tell right from wrong, that Lantrip told Men he would pay a neighbor to drive him around so as not to get caught drinking and driving and that Lantrip was reported as threatening to kill Lamkin if he called the police to report Lantrip’s earlier threatening behavior. Men interpreted this conduct as indicating an awareness of the wrongfulness of Lantrip’s actions. As for Lantrip’s 1957 medical records assessing paranoid schizophrenia, Men said contemporary diagnostic standards are much more stringent than the standards in place in the 1950s. Men did not believe the behavior described in Lantrip’s 1957 evaluation would qualify as paranoid schizophrenia under current evaluation standards; rather, Lantrip’s 1957 behaviors would more likely meet contemporary diagnoses of antisocial personality or antisocial features, anxiety disorder, or “the weakest of a brief psychotic disorder even or a reactive psychosis.” There was no indication Lantrip was prescribed medications for the 1957 psychiatric diagnosis or that Lantrip was on any medication at the time of Allen’s interview.
Where conflicting evidence on the issue of insanity is presented, determinations regarding the weight and credibility of that evidence should be resolved by the fact-finder, and we defer to those decisions, because the fact-finder has the benefit of observing the witnesses’ actions and demeanor.
Dashield v. State,
110 S.W.3d 111, 116 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). The jury was free to reject Lantrip’s evidence and find that he had failed to prove his insanity defense. It is true, as Lantrip stresses, that most of the State’s witnesses agreed with defense counsel that Lantrip’s acts did not make sense, but violence is often senseless. The jury was free to reject Lantrip’s assertion that his warnings to Lamkin and Maxwell not to call the police, contrasted with his supposed wish to commit “suicide by cop,” were evidence of his insanity. The jury could well have determined that Lantrip was habitually drunk, explaining his supposedly inconsistent positions regarding law enforcement.
Lantrip invites us to use the Texas Probate Code’s definition of incompetency to evaluate Lantrip’s sanity. We decline. Lantrip’s theory is that because, in the late 1950s the Veteran’s Administration ordered Lantrip’s disability checks be paid to his mother as guardian for Lantrip, he is incapacitated under the terms of the Texas Probate Code. Lantrip relies on this reasoning as further evidence of his insanity. Lantrip’s reasoning here fails, as incompetency in the Texas Probate Code and insanity in the Texas Penal Code are different concepts.
Lantrip offers no explanation or authority how the Texas Probate Code would apply to a criminal proceeding.
He cites us generally to Section 694F of the Texas Probate Code, which concerns a trial court order restoring a ward’s capacity. Tex. PROb.Code Ann. § 694F (Vernon 2003). The Texas Probate Code speaks in terms of capacity or incapacity, where an incapacitated person is one “who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs”
or one “who must have a guardian appointed to receive funds due the person from any government source.” Tex. Prob.Code Ann. § 3(p)(2), (3) (Vernon Supp. 2010).
To the extent a guardian was deemed necessary for Lantrip fifty years ago, that was evidence which the jury was free to consider or reject, along with the other much more relevant evidence, in determining whether Lantrip proved his affirmative defense of insanity at the time of the instant offense.
In concluding his discussion of this point of error, Lantrip asserts, “[T]he State- did not carry its burden of proving sanity beyond a reasonable doubt.” As stated above, defendants are presumed sane, and insanity is an affirmative defense to be asserted and proved by a defendant. It is true that, if evidence is admitted of a prior, unvacated adjudication of insanity, the burden shifts to the State to prove, beyond a reasonable doubt, the defendant’s sanity at the time of the offense.
Manning v. State,
730 S.W.2d 744, 748 (Tex.Crim.App.1987). Although' Lantrip relied on evidence of his mental health diagnoses from the 1950s to prove his insanity defense, there was no evidence of a prior adjudication of insanity.
Thus, the burden remained Lantrip’s. After reviéw-ing all the evidence, we cannot say the jury’s rejection of Lantrip’s claim of insanity is so against the great weight and preponderance of the evidence as to be manifestly unjust.
Meraz,
785 S.W.2d at 155.
(2) Lantrip Was Not Entitled to Admonishment Regarding His Trial Testimony
Lantrip was the only defense witness at' the guiltylnnocence stage of trial. As summarized above, he testified about his head injury, his violent past, his drinking habits, and claimed that he blacked out on the day of the shooting. Before Lan-trip testified, outside the presence of the jury, the trial court told Lantrip he possessed a constitutional right to remain silent, and no one, including the court, could force him to testify. The court told Lan-trip that, if he decided to testify, the State would be able to “ask any questions that they want to ask” and Lantrip would “have to respond.” Lantrip told the trial court he understood this and agreed he made the choice .to testify freely and voluntarily and was not being forced or coerced. After the trial court questioned Lantrip, his defense counsel confirmed that it was Lan-trip’s desire to' testify in order to assert his defense of insanity and tell his version of the events. .
On appeal, Lantrip claims the trial court’s admonishments were insufficient and thus caused reversible error. We disagree.
A trial court has no duty to advise a testifying defendant, represented by counsel, of his or her right not to
testify.
Newell v. State,
461 S.W.2d 403, 404 (Tex.Crim.App.1970). While it is true
Newell
involved a plea of guilty, we have found no authority or reason why the same does not apply where a defendant pleads not guilty. When a defendant, represented by counsel, takes the stand to testify in his or her own defense, we presume that the act is done voluntarily and with full knowledge of the defendant’s rights.
Mullane v. State,
475 S.W.2d 924, 926 (Tex.Crim.App.1971).
Lantrip complains on appeal he was not told that evidence or testimony elicited from him could be used to incriminate him.
He offers, though, no authority establishing any duty by the trial court to admonish him at all. '
See Newell,
461 S.W.2d at 404. Lantrip clearly told the trial court he understood that the State’s attorney would be able to cross-examine him. The record supports a finding that Lantrip’s waiver of his-right not to testify was made' knowingly and voluntarily. We overrule this point of error.
(3) No Newly Discovered Evidence Entitles Lantrip to a New Trial
Lantrip also claims the trial court erred in not granting his motion for a new trial. A new trial shall be granted to an accused where material evidence favorable to the accused has been discovered since trial. Tex.Code CRIM. Proc. Ann. art. 40.001 (Vernon 2006). Not only does the decision to grant or deny such a motion fall within the sound discretion of the trial court, subject to reversal only on a finding of an abuse of that discretion, but these motions are generally disfavored by the courts and viewed with great caution.
Lewis v. State,
126 S.W.3d 572, 579 (Tex. App.-Texarkana 2004, pet. refd). A trial court does not abuse its discretion in denying a motion for new trial unless the record demonstrates that (1) the newly discovered evidence was unknown at the time of the trial; (2) the failure to discover the new evidence was not due to a lack of diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial.
Id.
None of these requirements are present here.
At the hearing on the motion for new trial, Lantrip offered an excerpt from the hospital records where he was admitted after being shot by Deputy Johnson. Lan-trip directed the trial court to the sections noting, “Neuro: Positive for altered mental status” and “Neuro: Orientation: Not oriented to person, place, time. Mentation: confused.” Lantrip admits that he is not relying on this evidence as “newly discovered,” but argues that it could have
been used to impeach or contradict the State’s trial expert, psychologist Dr. Tom Allen. This may be, but Lantrip must still establish the elements listed above to be entitled to a new trial.
There is nothing to suggest Lantrip’s own medical records were not available to him before trial. We cannot say the initial diagnostic notes are material to Lantrip’s defense of insanity. The doctor’s written comments that Lantrip had an “altered mental status,” was “[n]ot oriented to person, place, [or] time” and was “confused” were corroborative and cumulative to Lan-trip’s trial testimony he blacked out and did not recall the events around the shootings. As he suggests in his appellate brief, he could have used these comments to undermine or impeach the State’s psychologist. Not only does this evidence not qualify as newly discovered, but it is “merely cumulative, corroborative, collateral, or impeaching.”
Wallace v. State,
106 S.W.3d 103, 108 (Tex.Crim.App.2003).
It also reflects his condition after his encounter with deputies, during which he was, himself, shot and rendered unconscious. We overrule Lantrip’s third point of error.
ft)
At Trial, Lantrip Was Not Entitled to Be Dressed, as He Chose, in Camouflage Clothing
Lantrip argues that the trial court erred in allowing him to wear jail-issued, orange clothes during his jury trial. Before trial, Lantrip advised the trial court, “I want camouflage in court, Judge. I wore prison white for 30 years, and I’ve decided it’s camouflage from here on out.” The trial court said that wearing camouflage in the courtroom was not acceptable and offered to provide Lantrip some of the judge’s own clothes. Lantrip refused.
Throughout trial, several witnesses identified Lantrip with reference to his orange clothes.
Being forced to appear at a jury trial in jail clothes may impinge on a defendant’s presumption of innocence. If he or she does not wish to appear in such attire, it is incumbent on the defendant to make a timely objection to the trial court.
See Randle v. State,
826 S.W.2d 943, 945-46 (Tex.Crim.App.1992).
Lantrip made no such objection. In fact, it was his clearly expressed preference to wear the jail-issued outfit over civilian clothes. Lantrip was free to make this decision.
See Estelle v. Williams,
425 U.S. 501, 508, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1975) (“it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury”).
Lantrip argues the trial court should have granted his preference, to be tried in camouflage. He offers no support for this claim, other than arguing that camouflage is Lantrip’s preferred attire. The trial
court has discretion in the administration of the courtroom in order to maintain a proper level of decorum and dignity.
See Illinois v. Allen,
397 U.S. 387, 344-45, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970);
see also Gonzales v. State,
2 S.W.3d 600, 607 (Tex.App.-Texarkana 1999, pet. ref'd) (“trial judge has the inherent power to control the orderly proceedings in the courtroom”). We cannot say the trial court abused its discretion in not allowing Lan-trip to wear camouflage clothing in the courtroom.
See Johnson v. State,
838 S.W.2d 906, 909 (Tex.App.-Corpus Christi 1992, pet. ref'd) (“To hold otherwise would require us to entertain the notion that the Due Process Clause or Art. 2.03(b) provide a defendant the right to appear before the jury in clothes of his choice, and perhaps of a particular style”). We overrule this point of error.
.We affirm the judgment of the trial court.