(Assigned), dissenting.
I respectfully dissent with respect to the majority’s disposition of point of error one regarding the trial court’s denial of appellant’s requested charge on insane delusion. I would sustain that point of error.
I concede that there was sufficient evidence to support the jury’s conclusion that Miller knew his shooting of Allen was wrong, when, as in this case, the jury’s conclusion was made only in light of the general charge on insanity that they were given by the trial court. Of course, the jury reached no conclusion based upon Miller’s delusional state because the trial court refused to instruct on that issue as Miller requested, and in fact the charge that was submitted to the jury made no mention of insane delusion whatsoever.'
I believe the majority is wrong in ignoring and in failing to apply the rule, long established by the courts of this State, that:
when the evidence raises an issue of whether a person is laboring under an insane delusion at the time he commits an act for which he is charged with a crime, the trial court, when requested, must instruct the jury on insane delusion so as to apply the law of the facts of the case, in addition to the general charge on insanity.
See Coffee v. State, 148 Tex.Crim. 71, 184 S.W.2d 278, 280 (Tex.Crim.App.1944); Merritt v. State, 40 Tex.Crim. 359, 50 S.W. 384, 387-88 (App.1899); Conaway v. State, 663 S.W.2d 53, 55 (Tex.App.—Houston [1st Dist.] 1983, pet. ref'd). Based on those authorities, I believe the above rule should be followed in cases such as the one now before this court until such time as the Court of Criminal Appeals rules otherwise.
The majority believes the evidence, based on its overall weight, was insufficient to charge under the above rule. The State concedes that at the time of the shooting, Miller was suffering from a serious mental disease known as delusional disorder. It is undisputed that Miller killed Allen by shooting him with a pistol. I believe the testimony of Miller and other witnesses, which I outline below, warranted a charge on insane delusion.
Oliver J. Miller, Sr.
Miller testified at trial, and the following are excerpts from his testimony:
► Miller had seen Allen with a gun on August 8, 1994, the day before the shooting.
► When Allen traveled around Miller, he usually had a gun.
► Miller knew Allen had a gun. He had seen Allen’s gun, a revolver, four or five times before August 9, 1994, plus he had seen it the day before the shooting. Sometimes Allen kept it in his file cabinet; sometimes he kept it in the desk drawer.
► When questioned about his taking a gun to Allen’s office, Miller testified:
Well, I thought about it a while, you know, because I remember a while back, Mr. Allen went to a fellow’s office and jumped on him and whipped him and he threatened to go home and get a gun. I think it was back in ’91. — He went to this fellow’s office and, you know, jumped on him for some reason, and I think he also threatened to go and get a gun.
► Miller also testified to conversations he had with Allen before August 9, 1994, where Allen told him that he “whipped someone’s ass” at some time in the past, and that in those conversations Allen told him, in addition to threatening to “whip someone’s ass,” that he had threatened to go get his gun and kill him.
► Miller said he went to Allen’s office because Allen was stealing his stuff and he thought he ought to take his gun, especially since Allen had stolen his stuff the day before.
► When asked what his intentions were in taking the gun to Allen’s office, Miller replied “Well, just in case, you know. I knew he had one, so, you know, protection.”
► Miller said when he asked Allen if he had his deeds, Allen said he didn’t, and then all of a sudden Allen started get*818ting hostile and talking loud and cursing.
► When asked what happened next, Miller said he was trying to leave; that Allen made a break to his desk and Miller thought Allen was trying to get a gun; that when Allen went for the desk drawer Miller kind of pushed him, and he thought Allen was going for a gun.
► When asked on cross-examination if he realized that killing someone was wrong, Miller said at that particular time he was not thinking about that.
► He said he knew killing people was wrong, but at that time he didn’t know it was wrong. When quizzed about that, Miller said <cWell, it was protecting myself_ I was sort of protecting myself.” When asked if he was claiming self-defense, Miller replied “Well, I’m claiming that I thought he was going for a pistol.”
► When again asked if he shot Allen in self-defense, Miller replied ‘Tes. I believe it was either him or me. You know, I mean, he’s going for a gun.... I was just trying to protect myself.”
► When Miller was asked if he thought he was insane when he killed Allen, he replied “Well, I just snapped. I just snapped. The pressure just come, you know — when he made a break for the desk drawer, and, you know — the pressure just overwhelmed.”
Dr. Ann Turbeville
Dr. Ann Turbeville gave the following testimony about Miller:
► Miller had a delusional thought disorder on August 9,1994, when he caused the death of Emmett Allen, and she felt Miller was delusional at that time. She said Miller’s delusional disorder involved a huge number of people, attorneys, the court system, federal government, banks, funeral home, and relatives, and that in delusional thinking there is usually a basis of truth, “there’s always a little teeny kernel of truth and, from that, people begin to put two and two together and come up with five.”
► There is a feeling in psychiatry that delusional disorder is a type of projected depression; that a delusional disorder, which used to be called paranoid disorder, is a separate category of a major mental illness; that many delusional disorder sufferers are quite functional in society and are not necessarily delusional in all aspects of their life; and that “they certainly believe what’s going on.” She also said there was no evidence that Miller was malingering in this case.
► Dr. Turbeville thought Miller’s reasoning and how he came up to the act of killing Allen was certainly delusional and not good thinking, but did not believe that it was so pervasive that it took in the whole world — that the world would want him to kill Allen. She also said she believed Miller knew what he was doing on August 9, 1994, was wrong.
► With respect to Miller’s testimony, in justification of his beliefs, that Allen was going for a gun, Dr. Turbeville felt that appellant’s contention was more likely a rationalization that was developed later, and more likely to be a rationalization than a consequence of his delusion. However, cross-examination revealed that at the time Turbe-ville expressed that opinion she was not aware of information before the jury that indicated that Allen had on a previous occasion told Miller of a circumstance in which he had assaulted a person and then threatened to go get a gun and kill that person. On further cross-examination, when asked if she thought that information would help justify Miller’s opinion, in his own mind, that Allen was going for a gun at the time he was shooting, Turbeville replied “it certainly might help, yeah.”
Dr. Mark Cunningham
The testimony of Dr. Mark Cunningham about Miller was generally as follows:
*819► Miller suffers from a delusional disorder, a psychosis, being a disruption in thought processes or a disruption in the person’s contact with reality, a disruption in understanding, a recognized mental condition, a sub-category of psychotic disorders. A delusional disorder is considered to be a severe phenomenon, a major criteria for being a severe mental disorder, a major psychiatric disorder.
► He said that this case concerns a specific type of delusional disorder called a persecutory type, where:
You think people are trying to get you, that they’re conspiring against you, that they’re going to plot against you or hurt you in some way.
► Dr. Cunningham said Miller does suffer from a delusional disorder of a persecu-tory type, continues to suffer from a major thought disorder, a delusional disorder, and has a severe mental disease or defect of a delusional disorder.
► He said that Miller believed there was a conspiracy against him and that delusional disorder individuals may resort to violence against those that they believe are hurting them or that they think are going to hurt their family in some way.
► Dr. Cunningham believed that Miller was suffering from a delusional disorder at the time of the shooting on August, 9, 1994, and that in this case Miller’s mental illness precipitated a shooting. Dr. Cunningham believed that Miller did not know that his conduct was wrong; that Miller believed that his behavior was justified and was not morally wrong; that Miller thought because it was justified it was not wrong; and because of the presence of the delusion Miller did not regard this particular behavior as wrong.
► Dr. Cunningham said it’s not just that a person is mentally ill, but that they are mentally ill at the time of the offense and because of that the person doesn’t know that their behavior is wrongful.
► Dr. Cunningham said the psychiatric records of Miller that he reviewed established a delusional disorder sufficient to result in a finding to motivate a shooting.
► Dr. Cunningham said Miller acted in a manner that he thought was an appropriate self-defense. On the self-defense issue, Dr. Cunningham further testified:
I don’t have a way to explain why Mr. Miller would kill Emmett Allen if it’s not connected to this delusional belief— there’s no apparent way of explaining this except in response to a delusion. He (Miller) describes arming himself because he was fearful of Emmett Allen— he recalled that Emmett Allen carried a gun, had a gun — had bragged to him (Miller) about bullying people — when he described how he was able to get renters out of his apartments when he needed to evict them — he described Emmett Allen being someone who was potentially dangerous.
I think he (Miller) felt himself to be very much in danger.
I don’t think that he (Miller) knew his conduct was wrong at the time of the offense, when he killed Emmett Allen, because he thought he was using self-defense.
He (Miller) is justifying it (killing Allen) to himself with a faulty delusional rationale.
In terms of delusional behavior, it doesn’t make any difference whether any of that (Miller’s statements about Allen having or going for a gun) was factually true.
Dr. Swen Helge
The pertinent testimony of Dr. Swen Helge about Miller’s actions was:
► In his opinion, Miller was suffering from a major mental disorder and was suffering from that disorder on August 9,1994.
► Helge thought, within reasonable psychological probability, that Miller was suffering from a delusional disorder that rendered him insane at the time he shot Allen.
*820► It was the delusional disorder that Miller was suffering from that caused him to lack an understanding that his conduct was wrong.
► If Miller, on August 9, 1994, while laboring under the disability of that disease, believed that he was acting in self-defense, then the basis of that belief — that self-defense was necessary— was his delusional disorder.
► Dr. Helge believed that Miller was in fact acting in self-defense when he shot Allen, that Miller believed he was acting in self-defense, and the basis of that belief was his delusional disorder, which may or may not be grounded in fact.
In my opinion the evidence on Miller’s delusional disorder and that he was suffering under that disorder at the time he killed Allen, was such to necessitate the jury being charged on insane delusion as Miller requested.
The majority opinion states the evidence did not raise a factual issue of whether Miller faced, or even delusionally thought he faced, an “apparent danger of death or serious bodily injury,” because no witness used that phase in testimony. The majority opinion then apparently holds that to warrant an instruction on insane delusion in this case, there must have been expert testimony that in reasonable probability Miller’s perception of Allen reaching for a gun was based upon an insane delusion about an apparent danger of death or serious bodily injury from Allen, and that in reasonable probability, the insane delusion caused Miller to react by killing Allen. I don’t believe it is necessary that those “magic words” be included in an expert’s testimony in order to warrant an instruction on insane delusion.
The testimony outlined above, taken as a whole, was sufficient to show that Miller delusioned himself as being in apparent danger of death or serious bodily injury, and that in shooting Allen he was preserving his own life or safety, or at the very least the evidence raised a fact issue regarding that matter. Under the theory of delusional self-defense, a jury is required to judge the defendant’s actions in light of the facts as he perceived them to be, rather than under a reasonable person standard. Whether Miller’s killing of Allen should have been excused because he was acting under an insane delusion at the time was a question to be determined by the jury.
I also disagree with the majority’s holding that the granting of Miller’s requested instruction would have amounted to an improper comment on the evidence. As mentioned above, I feel there was evidence indicating that Miller delusioned that he was in apparent danger of death or serious bodily injury. The requested instruction would have properly applied the law to those facts.
I would sustain point of error one, hold that the refusal to submit Miller’s requested instruction resulted in harm to him, reverse the conviction, and remand the case for a new trial.