                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-13-00264-CR

LARRY DON HALEY,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 11-02213-CRF-272


                           MEMORANDUM OPINION


       Larry Haley assaulted his girlfriend, was convicted of the offense of

Assault/Family Violence which was enhanced to a felony, and was sentenced to 14

years in prison. TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2013). He also

assaulted his girlfriend’s daughter, was convicted of assault, and was sentenced to one

year in the county jail. Id. § 22.01(a)(1). Because the trial court did not err in failing to

instruct the jury on the affirmative defense of involuntary intoxication, and because
Haley’s issue regarding the trial court’s ruling on his motion to suppress was not

preserved, the trial court’s judgments are affirmed.

BACKGROUND

        Donald Macy, Haley, Haley’s girlfriend, Lisa Cates, and her daughter, Jessica,

went to the Flying W bar just down the road from where Macy and Haley worked

together at Joe Goodrum Trucking. They all drank at the bar. Haley got mad and left

the bar because a mutual friend was “hitting on” Jessica, who was underage. Haley

returned to the trucking company and Macy, Lisa, and Jessica soon followed. Haley

and Lisa then began arguing. The argument turned into a physical altercation, and

Haley struck Lisa in the face with his fist several times. Lisa fell to the ground and

appeared to be unconscious. Macy yelled at Haley to stop and called 911. Jessica tried

to intervene, and Haley slapped her with an open hand across her face. Macy, with

Jessica’s help, picked up Lisa and took her to a nearby trailer where Haley lived. Two

sheriff’s deputies arrived at about the same time Macy and Jessica got Lisa into the

trailer. Haley made the initial contact with one of the deputies and said he was sorry

for what he had done.

INVOLUNTARY INTOXICATION-CHARGE ERROR

        In his first issue, Haley argues that the trial court erred in failing to give the jury

an instruction on the affirmative defense of involuntary intoxication. A claim of jury-

charge error is reviewed using the procedure set out in Almanza. Barrios v. State, 283


Haley v. State                                                                           Page 2
S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985). If error is found, we then analyze that error for harm. Middleton v. State,

125 S.W.3d 450, 453 (Tex. Crim. App. 2003).

        A defendant is entitled, upon a timely request, to an instruction on any

defensive issue raised by the evidence, regardless of whether the evidence is strong or

weak, unimpeached or contradicted and regardless of whatever the trial judge may

think about the credibility of the evidence. See Rogers v. State, 105 S.W.3d 630, 639 (Tex.

Crim. App. 2003); Arnold v. State, 742 S.W.2d 10, 13 (Tex. Crim. App. 1987).

        Insanity is an affirmative defense to prosecution 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) (West 2011). The Court of

Criminal Appeals has determined that the insanity defense also encompasses the

defense of insanity due to involuntary intoxication. Mendenhall v. State, 77 S.W.3d 815,

818 (Tex. Crim. App. 2002). Thus, it is an affirmative defense to prosecution that, at the

time of the alleged offense, the defendant, as a result of a severe mental defect caused by

involuntary intoxication, did not know that his conduct was wrong.         Id. (Emphasis

added).      Intoxication is involuntary if the defendant exercised no independent

judgment or volition in taking the intoxicant. See Torres v. State, 585 S.W.2d 746, 749

(Tex. Crim. App. 1979).




Haley v. State                                                                       Page 3
        Although it was undisputed that Haley drank at the bar, Haley argues that

testimony by Donald Macy raised the issue that Haley’s intoxication was involuntary,

i.e., that he “exercised no independent judgment or volition in taking the intoxicant,”

thus warranting an instruction in the charge on involuntary intoxication. Macy testified

that: 1) Haley was madder than he had seen him before; 2) Haley was acting crazy and

different, almost like someone had spiked his drink; 3) Macy had heard of spiking

drinks at the Flying W; 4) Haley told Macy he thought someone may have spiked his

drink and he was out of character; and 5) Macy thought Haley was out of character.

Even assuming this testimony constitutes some evidence that Haley’s intoxication was

involuntary, a holding we specifically do not make,1 Haley offered no evidence that,

because of the involuntary intoxication, he did not know his conduct was wrong. See

e.g., Lewis v. State, No. 05-12-00837-CR, 2013 Tex. App. LEXIS 13607 (Tex. App.—Dallas

Oct. 31, 2013, pet. ref’d) (not designated for publication) (even if intoxication

involuntary, evidence did not permit a rational jury to conclude defendant did not

know conduct was wrong); Harris v. State, No. 02-09-00177-CR, 2011 Tex. App. LEXIS

1600 (Tex. App.—Fort Worth Mar. 3, 2011, no pet.) (not designated for publication)

(same); Scott v. State, No. 03-07-00654-CR, 2009 Tex. App. LEXIS 1165 (Tex. App.—

Austin Feb. 20, 2009, no pet) (not designated for publication) (same). A defendant must

establish that his involuntary intoxication caused him to not know his conduct was

1We also do not address whether Haley was required to confess that his actions violated the statute
before being entitled to this defense or whether he did confess.

Haley v. State                                                                              Page 4
wrong. Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002); see Arabie v. State,

421 S.W.3d 111, 114 (Tex. App.—Waco 2013, pet. ref’d). He must do more than merely

present evidence of intoxication or even gross intoxication. Arnold v. State, 742 S.W.2d

10, 14 (Tex. Crim. App. 1987); see Arabie, 421 S.W.3d at 114.

        The closest any testimony comes to supporting this element of the defense is that

Macy and Haley thought Haley was “out of character.” This is no evidence that,

because of involuntary intoxication, Haley did not know beating Lisa and striking

Jessica was wrong. Further, when the Sheriff’s deputy arrived at the scene, and before

the deputy even knew what happened, Haley apologized for what he had done. This

indicates Haley knew his conduct was wrong. See Graham v. State, 566 S.W.2d 941, 952

(Tex. Crim. App. 1978) (apologies after beatings indicate an awareness of acts and of

wrongfulness).

        Accordingly, the trial court did not err in failing to include an instruction on

involuntary intoxication in the court’s charge to the jury.        Haley’s first issue is

overruled.

MOTION TO SUPPRESS

        In his second issue, Haley contends the trial court erred in denying his motion to

suppress because a video/audio tape of the statements made by Haley had been erased

by the Sheriff’s Department. Specifically, Haley argues on appeal that “the destruction

of the audio/videotape recording evidencing ‘spontaneous’ post-arrest statements was a


Haley v. State                                                                       Page 5
violation of appellant’s due process rights under the Federal and State Constitutions.”

Haley’s complaint on appeal “centers on the destruction of the audio/videotape of the

‘spontaneous’ statement” and that it was destroyed in bad faith by the Sheriff’s

Department.       However, Haley did not raise this theory in his written motion to

suppress or at the hearing on the motion to suppress. Rather, in the written motion,

Haley contended that: 1) any statements were involuntary and coerced; 2) Haley was

deprived of his right to counsel and did not waive that right; 3) the statements were

tainted by an illegal detention and arrest; 4) the statements were taken in violation of

Article 38.22 of the Texas Code of Criminal procedure; and 5) the admission violated

Haley’s rights pursuant to the United States and Texas Constitutions. At the hearing,

Haley specifically argued only that the admission of one of his statements violated the

best evidence rule and that it was more prejudicial than probative.

        These complaints do not comport with the complaint raised on appeal.                          A

complaint will not be preserved if the legal basis of the complaint raised on appeal

varies from the complaint made at trial. See TEX. R. APP. P. 33.1; Lovill v. State, 319

S.W.3d 687, 691-692 (Tex. Crim. App. 2009). Accordingly, because Haley’s issue does

not comport with the complaint made at trial or in his motion to suppress, the issue

presents nothing for review and is overruled.2



2Youngblood appears to still be the controlling test when the State has destroyed potential evidence. See
Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010). In this proceeding, there was no evidence
presented that showed or suggested the State’s destruction of the evidence was in bad faith.

Haley v. State                                                                                    Page 6
CONCLUSION

        Having overruled each issue on appeal, we affirm the trial court’s judgments.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 3, 2014
Do not publish
[CR25]




Haley v. State                                                                     Page 7
