Mental Illness & Criminal Law: The Insanity Defense

October 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Not guilty by reason of insanity (“NGRI”) is a defense where the accused did not appreciate the difference between right and wrong because of their mental illness or impairment.

In Texas, though, the insanity must be a complete defense.  That is, the person’s criminal act must be entirely because of the insanity or whatever false delusion they were having.  If they even slightly had the ability to decipher right from wrong then the law does not allow for acquittal under the insanity defense.

Mens Rea

Most crimes have what the law calls a “culpable mental state.”  Mens Rea is latin for “guilty mind.”  When a person commits assault, murder, theft or runs an illegal casino – they do so with the culpable mental state which accompanies the crime.  That is, they either intend, know or in some instances are reckless as to whether the illegal result occurs.

A criminal charge punishes a criminal act when accompanied with a criminal mind – or so the theory goes.

An Insanity Defense Negates the Mens Rea

Where there is no guilty mind most cases would not allow a person to be ‘punished.’

Here is of how NGRI works or wouldn’t work:

  • Where someone is under the delusion the world is under attack by aliens – and Wal-Mart has graciously opened their doors so that everyone can grab whatever supplies they need and run for the hills… this could be an insanity defense for theft because under the person’s delusion, they are still not committing theft.  Wal-Mart authorized them to take the supplies given the circumstances.
  • Where a person is under the delusion the newspaper delivery person is a North Korean soldier flinging a grenade a their house – and the person returns fire in self defense, they could actually be acquitted due to NGRI because if that delusion were true, the defendant wouldn’t be committing a crime.
  • On the flip side — let’s say someone heard voices in their head which were unrelenting telling them to take supplies from Wall-Mart for whatever reason.  This might not be NGRI because the person still knew taking was wrong.

There are many more variations and real world examples can be both far fetched at times and in other instances gruesome and tragic.

What Happens When the Court Finds Someone Not Guilty By Reason of Insanity?

The Court retains jurisdiction over the person.  The person can often times be committed to a State Hospital where they can be treated or restored.

The period for restoration cannot exceed the maximum punishment.  But in some instances like in murder cases – that could result in lifetime confinement in a State Hospital.

A person acquitted based on an insanity defense cannot expunge their record – so public records would always remain about their situation.

Misnomers About the Insanity Defense

Texas puts the burden on the accused to prove insanity.  It can also only be done where Defense has expert testimony from a professional who can establish the person could not in any way decipher right from wrong.

Many folks understandably get upset with people who plead insanity or are acquitted due to insanity and see it as an easy escape hatch to avoid consequences.   NGRI is a difficult mountain to climb for criminal defendants, though, and the reward for winning is normally going to a State Hospital for an undetermined amount of time plus a permanent criminal record – though not necessarily a conviction.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a Texas Super Lawyer by Thomson Reuters.

Mental Illness & Criminal Law: What is Legal Competency?

October 17, 2020

By Criminal Defense Laywer Jeremy Rosenthal

(972) 369-0577

“Competency” is the ability to stand trial.  Texas law provides a complex web of procedures which deal with making sure an accused is mentally capable of being tried.

“Incompetency Defined”

It is defined by Tex.Code.Crim.P. 46B.003 which holds:

(a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Translation:  competency is a somewhat low threshold.

A Rational, Factual Understanding Isn’t Enough

A misnomer is where a person understands basics about their charge such as the nature of the accusation, the role of defense counsel, the prosecutor and the judge – that they are okay to be tried.  Even judges make this mistake.

The person’s “sufficient present ability to consult with the person’s lawyer” is also crucial.  Often highly intelligent and high functioning defendants can still sometimes not have a coherent discussion with counsel.

Many people suffering from things like severe anxiety, manic behavior, or racing thoughts simply can’t keep it together for the time it takes for their lawyer to properly advise them – let alone try to get details to mount an effective defense.  To me, this is the very essence of “incompetency.”

Suggestion of Incompetency

If a lawyer is concerned their client may have enough issues which affect their ability to stand trial – the lawyer can and should file with the Court a “Suggestion of Incompetency.”  It puts the case on pause though it does sound a bit harsh.  The prosecution can file the motion and in some instances the Court can make the suggestion as well.

The trial judge then appoints a mental health professional to do a competency evaluation.  The Court then holds a hearing after the evaluation is complete and finds either defendant is competent to stand trial or he/she is incompetent for the purposes of trial.  If they are competent then the case resumes.

What Happens When the Accused is Found to be “Incompetent”

Mental health professionals attempt to restore the accused to competency through mental health treatment.  It can be in-patient or out-patient depending on the severity of the charge, whether the person is on bond, and the resources available to the county.

Any confinement in a state hospital cannot exceed the maximum punishment range for the charge.  In other words the maximum punishment for assault causing bodily injury is 1-year.  In theory a person could be confined for the entire year being ‘restored’ but no longer.

Mental health providers routinely update the Court and if the person is restored to competency — sometimes as simply as getting a person the correct medication — the case then proceeds.

What Happens When the Defense And Prosecution Disagree About Competency?

Most of the time the Judge, prosecution and defense agree on competency issues.  In cases where we don’t, Defendant has the right to invoke a right to a jury to prove they are, in fact, incompetent to stand trial.  This would be a way of demanding help for mental illness where the prosecution and/or Judge minimize the impact of mental health or see it as an excuse to avoid responsibility for a crime.

Why Would Someone’s Own Lawyer File a Suggestion of Incompetency Which Could Result in Confinement?

This is a fantastic question.  And perhaps they shouldn’t for this very reason depending on the severity (or lack of severity) of the charges.  A lawyer hired to defend a client from the charges they are facing.  A client needs to be able to fight those charges.  If a lawyer were to enter into a plea bargain or have the client participate in a trial they doesn’t understand – this could very often lead to a far worse result than mental health restoration in a state hospital.  Again – this precise issue is a fantastic debate without a clear answer.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

Mental Illness & Criminal Law: Mental Health Bonds

October 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Texas law does provide an avenue for the mentally ill to get out of jail without having to pay a bond.  Not everyone who suffers from mental illness is entitled to relief under Texas law.  As you might expect, Texas law lags in different areas for various reasons.


Mental Health Bonds


Tex.Code.Crim.P. 17.032 allows for a mental health bond.  The judge is required to let the person get out of jail for free — i.e. not have to pay a bond amount — provided they comply with the statute.

Here are the qualifications for a Mental Health Bond:

  • They cannot be charged with a violent offense;
  • They cannot have been previously convicted of a violent offense;
  • They must be examined by mental health personnel with the County;
  • The report by the County must conclude –
    • Defendant suffers from mental illness or intellectual disability;
    • Defendant is otherwise legally competent to stand trial;
    • Defendant is recommended to receive mental health treatment or treatment for the intellectual disability;
  • The Judge must also find the county is capable of treatment.

If all of these criterion are met, then the Judge is required to release Defendant.  Typically a treatment plan is implemented which may include in-patient or outpatient services along with a host of other requirements the person must comply with.

Shortcomings of the Mental Health PR Bond Statute

The statute isn’t perfect.  Many counties don’t have the infrastructure or ability to treat the mentally ill – so a person can actually be kept in jail because their county is unable to treat them.

Also, the mental health release provision allows people in a certain “box” or range of mental illness too — if a person is mentally ill, yet not so deteriorated they are legally incompetent for trial — then they qualify for the bond.  If they are too mentally ill, then they don’t qualify.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.


Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.


What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.


I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.