concurring.
Appellant contends that the trial court erred by permitting the prosecuting attorney to argue, over objection, that because of the presumption of sanity the State did not have the burden of proof on the issue of the insanity defense. The proper disposition of this ground of error is not to be found in a discussion of the law of presumptions.
A leading commentator has observed that “ ‘presumption’ is the slipperiest member of the family of legal terms, except its first cousin, ‘burden of proof.’ ” McCormick, Evidence, Sec. 342 (2d ed. 1972). But while the subject of presumption has produced much confused and confusing language, it is generally agreed that the term describes “a relationship between one fact or group of facts and another fact or group of facts.” Morgan and Weinstein, Basic Problems of State and Federal Evidence (5th ed. 1976). McCormick suggests the following definition:
“[A] presumption is a standardized practice, under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts.” McCormick, supra, Sec. 342.
See also 9 Wigmore, Evidence, Sec. 2491 (3d ed. 1940).
In this State, the defense of insanity is an affirmative defense as to which the accused bears both the burden of producing evidence and the burden of persuasion. V.T. C.A. Penal Code, Secs. 2.04 and 8.01. While the term presumption is often used in reference to affirmative defenses, this use of the term as a legal concept is incorrect.
“[Affirmative defenses] do not operate with regard to inferences drawn from the evidence, but rather operate as principles of substantive law governing the entire proceeding. An example of such a rule of law mislabeled a presumption is the ‘presumption of sanity,’ as it operates against the defendant in a criminal case. The so-called ‘presumption’ is simply a rule stating that the defendant has the burden of producing evidence (or of proving) his insanity at the time of the of*112fense. The use of the term presumption is only confusing.” McCormick, supra, Sec. 346.
Since, strictly speaking, there is no presumption of sanity, the correct disposition of this ground of error is not to be found in those cases and texts dealing with the procedural and evidential effect of presumptions. The question presented is simply whether the prosecutor’s reference to the non-existent presumption of sanity was so manifestly improper as to require a reversal of the judgment. See Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Minter v. State, 505 S.W.2d 581 (Tex.Cr.App.1974). I conclude that it was not.
The remark of the prosecutor of which complaint is made occurred during the following exchange:
“MR. ELLIS: . . . Remember that the defendant was and is presumed to be sane until you say definitely by your verdict. And I don’t have the slightest burden in the world imposed on me in that respect. Now how did the defendant—
“MR. CABALLERO: Judge, I object to any mention of presumptions, those presumptions have vanished at the point I submitted evidence of insanity and my burden is only to prove insanity by a preponderance of the evidence . It is an improper remark and not the law.
“THE COURT: I will refer the ladies and gentlemen of the jury to the charge, and overrule your objection.
“MR. ELLIS: Look in the charge. The defendant must prove an affirmative defense by the preponderance of the evidence. Why does the defendant have to prove something, if it is not the case, because it is presumed to be the other way around.
“MR. CABALLERO: Judge, I object to that. There is not a word presumption in the charge anywhere. That presumption is not given to the jury and I object to counsel arguing about a presumption that no longer exists.
“THE COURT: I will refer the jury to the charge and overrule your objection.
“MR. ELLIS: Let me draw an analogy that I am sure Mr. Caballero won’t quarrel with. The presumption of innocence, the defendant is presumed to be innocent until the State proves him guilty.
“MR. CABALLERO: Judge, I object to that. The presumption of innocence is in the charge and the presumption of insanity is not. That is improper argument.
“THE COURT: Overruled, sir.”
The essence of the prosecutor’s argument was that the State was under no obligation to bring forward evidence that the appellant was sane at the time of the offense; that the burden of proof as to the insanity defense was entirely on the appellant. To this extent, the prosecutor’s argument was a correct statement of the law and in accord with the trial court’s charge to the jury. Moreover, the prosecutor did not argue that the jury should consider the “presumption of sanity” as evidence that appellant was sane at the time of the offense. The prosecutor merely fell into the error, commonly made, of attributing the accused’s burden of proof on the insanity defense to a “presumption of sanity.” Given the context in which this reference to the “presumption” was made and the clear and correct charge on the insanity defense, the prosecutor’s error was not so manifestly improper or prejudicial to the appellant as to require a reversal of the judgment.
I concur in the affirmance of the judgment.