                                   NO. 07-03-0473-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 DECEMBER 14, 2004

                          ______________________________


                           PEDRO A. NOYOLA, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

      FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

         NO. 2002-481035; HONORABLE LARRY B. “RUSTY” LADD, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      After appellant Pedro A. Noyola pleaded not guilty, a jury convicted him of driving

while intoxicated, and the trial court assessed a sentence of 180 days confinement,

probated for 24 months, and a $2000 fine. With one issue, appellant claims “the trial court
erred in denying [his] requested jury charge when [he] presented evidence that raised an

issue as to the reason for [his] behavior.” We affirm.


       During the early morning hours of August 5, 2002, Officer Brandon Price observed

a pickup truck traveling in the center lane that “had drifted into the lane closest to the curb

three different times.” Because “you’re required by law to maintain the lane of travel that

you occupy,” Price activated his emergency lights to notify the driver of the truck to stop.

Price identified appellant as the driver and observed that appellant had “bloodshot watery

eyes and swayed as he stood.” Appellant had a strong odor of an alcoholic beverage

coming from his breath when he spoke. Additionally, appellant admitted to Price that he

had been drinking. After appellant failed each of the field sobriety tests administered to

him, Price concluded he was intoxicated and arrested him.


       At trial, appellant testified that he was an insulin-dependent diabetic. He admitted

that he had been drinking earlier in the evening, but vowed that he had gone to bed around

8:00 p.m. According to appellant, the manager of a bar he owned called around midnight

and asked him to relieve her at the bar. Appellant went to the bar and stayed there until

he closed it down at 2:00 a.m. He denied drinking any alcoholic beverages while he was

at the bar. Appellant asserted that at the time he left the bar to head for home he “wasn’t

feeling too good because [he] was feeling real dizzy.” He conceded that there were empty

beer cans in his truck, but he claimed they belonged to a man to whom he had given a ride

earlier in the evening. Appellant insisted that he was not intoxicated on the night he was


                                              2
arrested, and that his erratic driving and poor performance on the field sobriety tests

resulted, not from intoxication, but from his inability to adequately control his blood sugar

level.


         During the charge conference, appellant requested that the following instruction be

included in the charge:


               If the Defendant was suffering from a diabetic condition at the
               time and place in question rather than being under the
               influence of alcohol, he would not be guilty of the offense
               charged even if he was driving a motor vehicle. Therefore, if
               you find from the evidence that on the occasion in question and
               at the time of the Defendant’s arrest he was suffering from a
               diabetic condition or if you have a reasonable doubt thereof,
               you will acquit the Defendant.


The State objected to the inclusion of the requested instruction, and the court declined to

include it in the charge. Instead, the court instructed the jury on the statutory definition of

intoxication, enumerated the elements of the offense, and charged “[t]he State must prove

each element beyond a reasonable doubt before you [the jury] may return a verdict of

‘guilty.’” See Tex. Pen. Code Ann. §§ 49.01(2) & 49.04(a) (Vernon 2003).                In the

application paragraph, the court charged:


                Now if you so find from the evidence beyond a reasonable
                doubt that on or about the 5th day of August 2002, in Lubbock
                County, Texas, the defendant Pedro Noyola, did unlawfully,
                while not having the normal use of mental or physical faculties,
                by reason of the introduction of alcohol, a controlled substance,
                a drug, a dangerous drug, a combination of two or more of
                those substances, or any other substance into the body,

                                               3
              operate a motor vehicle in a public place as charged in the
              information, you will find the defendant guilty.


       With his sole issue, appellant asserts the trial court erred in denying his requested

instruction because he “presented evidence that his appearance, manner and conduct were

due to his improperly regulated diabetic condition and not due to intoxication.” We

disagree. First, appellant’s “diabetic condition defense” goes no further than to merely

negate an element of the offense alleged by the State in its indictment, namely, intoxication.

See Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Cr.App. 1998), cert. denied, 525 U.S.

1147, 119 S.Ct. 1044, 143 L.Ed.2d 51 (1999) (holding that defendant’s alibi defense

involved nothing more than complete negation of his involvement in the commission of the

offense). As a result, that defense was sufficiently embraced in the general charge to the

jury that the defendant was presumed innocent until he was proven guilty beyond a

reasonable doubt. Id. There was ample room within that instruction for appellant to have

argued his defense to the jury. See id. In fact, inclusion of appellant’s requested

instruction would have been superfluous and would have constituted an impermissible

comment on the weight of the evidence. See Solomon v. State, 49 S.W.3d 356, 368

(Tex.Cr.App. 2001).


       Furthermore, because the authority to establish what constitutes a defense rests

solely with the Legislature, a defense which is not recognized by the Legislature as either

a defense or as an affirmative defense does not warrant a separate instruction. Geisberg,

984 S.W.2d at 250. The term defense should not be used for an issue that has not been

                                              4
specifically labeled as such by the Legislature. Id.; see Tex. Pen. Code Ann. § 2.04(a)

(stating “[a]n affirmative defense in the [Penal] code is so labeled by the phrase: “It is an

affirmative defense to prosecution . . . “). The defense proposed by appellant is not one

of those enumerated under chapter eight of the Penal Code defining the general defenses

to criminal responsibility. Neither does the defense appear as an offense-specific defense

under chapter 49 of the Penal Code pertaining to intoxication and alcoholic beverage

offenses. Nor does appellant advance any other statutory authority for the defense he

would have us sanction.1 We conclude, therefore, that the trial court did not err in denying

appellant’s requested jury instruction. His sole issue is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                          Don H. Reavis
                                            Justice

Do not publish.




       1
        In reaching our conclusion, we have not overlooked appellant’s reliance upon Loftin
v. State, 366 S.W.2d 940, 941 (Tex.Cr.App. 1963). We simply agree with the State that the
continued viability of Loftin is suspect considering subsequent decisions by the Court of
Criminal Appeals. See Geisberg v. State, 984 S.W.2d 245 (Tex.Cr.App. 1998)), cert.
denied, 525 U.S. 1147, 119 S.Ct. 1044, 143 L.Ed.2d 51 (1999) and Solomon v. State, 49
S.W.3d 356 (Tex.Cr.App. 2001).

                                             5
