Opinion issued January 7, 2014.




                                  In The

                           Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-12-01147-CR
                         ———————————
                  JACQUES FRANK QUINN, Appellant
                                    V.
                    THE STATE OF TEXAS, Appellee



                  On Appeal from the 405th District Court
                        Galveston County, Texas
                     Trial Court Case No. 12CR0465



                       MEMORANDUM OPINION

     A jury convicted appellant, Jacques Frank Quinn, of third-degree felony

assault-family violence, and, after finding one enhancement paragraph true,

assessed punishment at 20 years’ confinement. See TEX. PENAL CODE ANN. §
22.01(b)(2)(A) (Vernon 2011).        In two points of error on appeal, appellant

contends that (1) the evidence is legally insufficient, and (2) the trial court erred by

admitting evidence of extraneous offenses. We affirm.

                                  BACKGROUND

      At the time Lakeisha Brown was introduced to appellant, she resided only

with her three children. Roughly three months later, Brown’s friend, Patrice Bell,

moved into Brown’s apartment to live with Brown and her children. After two

more months, appellant joined Bell, Brown, and the three children in occupying the

apartment. The six individuals resided together for approximately three months

before the occurrence of the assault for which appellant was convicted, from

November of 2011 until February 9, 2012.

      Brown testified at trial that she and appellant began dating very soon after

they met. They maintained their romantic relationship while living apart and for

the duration of their cohabitation. On February 8, 2012, the evening before the

assault, Brown put her children to bed around 7:30 p.m. just before she retired. At

that time, Bell was in the living room with her friend, Jay Lou. Brown testified that

appellant was not inside the apartment when she went into her room to sleep, nor

was he inside when she awoke around midnight.

      Apparently, however, appellant did return to the apartment at some time

between Brown’s midnight and 3:30 a.m. awakenings. Brown’s testimony

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indicates that at or about 3:30 a.m., she awoke to a partially illuminated apartment

and appellant “panting up and down the house” and “acting different . . . like he

ha[d] something to hide.” She characterized appellant as “frantic” and as having a

“glassy look,” ultimately stating her belief that he was “on” or “had taken

something.”

      Throughout appellant’s stint of abnormal behavior on the evening of the

assault, he and Brown argued for an hour and a half about the lights being on,

approximately from 3:30 a.m. to 5:00 a.m. During the lengthy confrontation,

appellant repeatedly screamed the names “Lakeshia,” “Patrice,” and “Enriqia,”

which Brown thought was a request for a threesome. When Brown asked why he

was screaming those names, appellant responded, “We’re all getting ready to go to

heaven together.”

      In the midst of his name-screaming, around 7:00 a.m., appellant advised

Brown to leave the apartment with her children: “It would be your best bet to get

these . . . kids out of here.” In response to Brown’s request for clarification,

appellant said it was “for their safety.” Brown then prepared to leave with her

eldest daughter, but before they could leave through the front door, appellant

darted to the couch in the living room, on which Bell was sleeping. Appellant

leaned over Bell and said, “Patrice, baby, wake up. Are you ready to go to heaven

together? We all fixing to go to heaven together.”

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      Half asleep, Bell raised her arm to avert further action by appellant.

Appellant counterattacked by biting Bell’s forearm and keeping his teeth clamped

down. It was not until Brown used a cooking pot to hit appellant twice in the head

that he released Bell’s arm. Appellant then turned his focus to Brown and used his

hands to choke her. Soon after appellant targeted Brown, a neighbor, Linda

Outlaw, intervened and escorted the two women and the children to her apartment,

where they all remained while Brown called 911.

      When the police and EMS arrived at the apartment, appellant was still

screaming the names he had been shouting earlier. While in police custody,

appellant continued to scream and demonstrate aggressive and erratic behavior.

Police Officer J. Davis testified that appellant was talking incoherently, answering

himself, making sexual comments, talking to God and being very aggressive.

Davis believe that appellant was under the influence of some type of narcotic

substance, but she did not know what. While on the way to the police department,

appellant continued acting bizarre and inappropriately, even biting himself so

badly that he needed stitches.

      Appellant testified on his own behalf to his version of the events. He stated

that on the night in question he, Bell, Bell’s friend Veronica, and Veronica’s

cousin Jay Lou had been sitting around smoking marijuana. At some point, the

women went into another room, leaving appellant and Jay Lou in the living room.

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Appellant testified that he did not knowingly use any drugs other than marijuana

that night. At one point he left the room, leaving a cup of Kool-Aid that he was

drinking alone in the room with Jay Lou. When he returned, he continued drinking

the Kool-Aid and started to feel “real, real crazy,” “not [himself],” and like he had

“never felt in his life.” Veronica and Jay Lou left and appellant woke up Brown

and asked for help. He then “blacked out” did not remember anything until he

woke up in the hospital getting stitches. Appellant testified that it was his belief

that Jay-Lou put something in his Kool-Aid that caused his erratic behavior. He

denied ever using the hallucinogenic drug, PCP.

      During his testimony, appellant was cross-examined about 13 crimes that

were either felonies or crimes of moral turpitude. The State was also permitted to

introduce three prior misdemeanor convictions for marihuana possession, which it

contended was admissible to rebut appellant’s affirmative defense of involuntary

intoxication.

      On rebuttal, the State called Bell, who testified that a few months prior to the

assault, she had seen appellant use PCP.

                     SUFFICIENCY OF THE EVIDENCE

A. Standard of Review and Applicable Law

      Appellant presents his first issue as one of legal sufficiency. At trial,

appellant admitted that he bit Bell, but disputed that he possessed the requisite

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intent or mens rea. When reviewing the legal sufficiency of the evidence in a

criminal case, we review all of the evidence in a light most favorable to the verdict,

and we decide if any rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004). A

person commits assault if the person intentionally, knowingly, or recklessly causes

bodily injury to another, including the person’s spouse. TEX. PENAL CODE ANN. §

22.01(a)(1). The offense is enhanced to a third-degree felony when “it is shown on

the trial of the offense that the defendant has been previously convicted of an

offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11

against a [family member].” Id. at § 22.01(b)(2)(A) (Vernon Supp. 2013). The

jury charge included the following with respect to the applicable mens rea:

      A person acts intentionally, or with intent, with respect to a result of
      his conduct when it is his conscious objective or desire to engage in
      the conduct or cause the result.

      A person acts knowingly, or with knowledge, with respect to the
      nature of his conduct or to the circumstances surrounding his conduct
      when he is aware of the nature of his conduct or that the
      circumstances exist. A person acts knowingly, or with knowledge,
      with respect to a result of his conduct when he is aware that his
      conduct is reasonably certain to cause the result.

      A person acts recklessly, or is reckless, with respect to the result of his
      conduct when he is aware of but consciously disregards a substantial
      and unjustifiable risk that the result will occur. The risk must be of
      such a nature and degree that its disregard constitutes a gross
      deviation from the standard of care that an ordinary person would
                                          6
       exercise under all the circumstances, as viewed from the actor’s
       standpoint.

B. Legal Sufficiency of Evidence of Mens Rea

       Intent may be inferred from circumstantial evidence such as appellant’s acts,

words, and conduct. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004); Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.

2003, pet. ref’d). Here, appellant was arguing with Brown when he attempted to wake

Bell, who was trying to stay out of the argument. While Bell tried to stay out of the fight,

she put up her arm and pushed appellant away, at which point appellant bit her. Appellant

did not let go until Brown hit him several times with a kitchen pot. From this, the jury

could have reasonably concluded that appellant acted intentionally, knowingly, or

recklessly when he bit Bell and caused her injury. Indeed, the jury could also have

inferred appellant’s intent from the extent of Bell’s injury, which was bleeding and

required treatment at a hospital. See Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.

App. 1995).

       Further, the police officer who responded to the scene testified that she believed

that appellant was under the influence of some type of narcotic substance, and in fact,

appellant admitted voluntarily using marihuana earlier in the evening.           Based on

appellant’s willingness to voluntarily ingest marihuana in the time immediately preceding

the offense, the jury could also have concluded that appellant had voluntarily ingested

either tainted marihuana or some other substance that caused his erratic behavior, even

though no one saw him do so. Voluntary intoxication is not a defense to criminal

                                             7
behavior, see TEX. PEN. CODE § 8.04(a), and a defendant cannot claim to be involuntarily

intoxicated when he admits to voluntarily smoking marihuana and should know that

marihuana cigarettes often come with other substances added. See United States v.

Bindley, 157 F.3d 1235, 1243 (10th Cir. 1998). Indeed, appellant testified that he was

aware that cigarettes were often dipped in PCP.

      Nevertheless, appellant argues that the evidence of mens rea is insufficient

because (1) he had no motive to bite Bell, and (2) the State did not prove that appellant

was voluntarily intoxicated. However, there is no requirement that the State prove

motive, see Loudres v. State, 614 S.W.2d 407, 411 (Tex. Crim. App. 1980) (noting that

motive is not an element of a crime), and the law presumes that a defendant is sane and

intends the consequences of his actions. See Ruffin v. State, 270 S.W.3d 586, 591–92

(Tex. Crim. App. 2008).

      Accordingly, the evidence is legally sufficient.

C. Rejection of Involuntary Intoxication Affirmative Defense—Factual Sufficiency

      The jury charge instructed the jury that “involuntary intoxication is a defense

to prosecution for an offense when it is shown that the accused has exercised no

independent judgment or volition in taking the intoxicant and that as a result of his

intoxication the accused did not know that his conduct was wrong.” This charge is

consistent with case law holding that involuntary intoxication is an affirmative

defense to a criminal indictment if, at the time of the alleged offense, the

defendant, as a result of a severe mental defect caused by involuntary intoxication,

                                            8
did not know that his conduct was wrong. See Mendenhall v. State, 77 S.W.3d 815,

817–18 (Tex. Crim. App. 2002).

      Although phrased as a legally sufficiency challenge, appellant also seems to

be complaining about the jury’s rejection of his involuntary intoxication. A factual

sufficiency review is still appropriate for affirmative defenses for which the

defendant has the burden of proof by a preponderance of the evidence. See Matlock

v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013). A defendant bears the

burden to prove involuntary intoxication by a preponderance of the evidence. See

TEX. PENAL CODE ANN. § 2.04(d) (Vernon 2003). In reviewing such a challenge,

we view the entirety of the evidence in a neutral light, but do not usurp the function

of the jury by substituting our own judgment in place of the jury’s assessment of

the weight and credibility of the witnesses’ testimony. Matlock, 392 S.W.3d at 671.

We may sustain a defendant’s factual-sufficiency claim only if, after setting out the

relevant evidence and explaining precisely how the contrary evidence greatly

outweighs the evidence supporting the verdict, we clearly state why the verdict is

so much against the great weight of the evidence as to be manifestly unjust,

conscience-shocking, or clearly biased. Id.

      To support his involuntary intoxication defense and counter the evidence

discussed above that appellant acted intentionally, knowingly, or recklessly,

appellant testified that his friend, Jay Lou, had put something in appellant’s Kool-

                                          9
Aid that made him feel “real, real crazy,” and “not myself.”            Appellant also

testified that he “blacked out” and did not remember anything of the events in

question until he was taken to the hospital to get stitches after he bit his own finger.

However, the jury, as factfinder, was free to disbelieve this evidence, and this

Court may not usurp the function of the jury by substituting its judgment in place

of the jury’s assessment of the weight and credibility of the witnesses’ testimony.

Id.

      Accordingly, the evidence supporting the jury’s rejection of appellant’s

affirmative    defense    is    not    greatly    outweighed      by    the    contrary

evidence. Matlock, 392 S.W.3d at 671.

      We overrule appellant’s first point of error.

                           EXTRANEOUS OFFENSES

      In his second point of error, appellant contends the trial court erred by

allowing the State to introduce evidence of three prior misdemeanor convictions

for possession of controlled substances.

A. Standard of Review and Applicable Law

      We review a trial court’s admission of extraneous offense evidence under an

abuse of discretion standard. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App.

2004); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996); Blackwell v.

State, 193 S.W.3d 1, 8 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). As long

                                           10
as the trial court’s ruling was within the “zone of reasonable disagreement,” there

is no abuse of discretion, and the ruling must be upheld. Thomas v. State, 126

S.W.3d 138, 143 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      Rule 404(b) prohibits the introduction of extraneous offenses to show

character conformity. TEX .R. EVID. 404(b); Page, 137 S.W.3d at 78; Moses v.

State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Blackwell, 193 S.W.3d at 9.

Extraneous-offense evidence may be admissible, however, when relevant beyond

character conformity, to show, for example, proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. Moses,

105 S.W.3d at 626; Blackwell, 193 S.W.3d at 9. Evidence of an extraneous offense

is also admissible if it is relevant to a fact of consequence apart from the tendency

to show conduct in conformity with character. See Casey v. State, 215 S.W.3d 870,

879 (Tex. Crim. App. 2007). Further, evidence of extraneous offenses is

admissible under Rule 404(b) when it is offered to rebut an affirmative defense or

a defensive issue that negates one of the elements of the crime. Id.

      Here, appellant argued that he did not voluntarily ingest any substance that

would have caused him to act as he did when he bit Bell. He contended that his

friend, Jay Lou, must have put something in his Kool-Aid when appellant was out

of the room.    Thus, evidence that appellant voluntarily took drugs on other

occasions was relevant to rebut appellant’s involuntary intoxication affirmative

                                         11
defense, which would negate the element of appellant’s mens rea. See Wheeler v.

State, 67 S.W.3d 879, 887 (Tex. Crim. App. 2002) (holding evidence of a

defendant’s other similar acts of sexual misconduct admissible to contradict and

rebut defensive theory of being framed); see also People v. Herdman, 310 P.3d

170, 180 (Colo. App. 2012) (holding use of cocaine not offered to show appellant’s

bad character or any propensity to act in accordance with any bad character, but to

rebut claim of involuntary intoxication).

B. Harmless Error

      Even if we assume that the trial court abused its discretion by admitting

the extraneous-offense testimony, we will not reverse the judgment if the error

was harmless. See TEX. R. APP. P. 44.2(b). More precisely, we will not reverse a

trial court’s judgment based on the erroneous admission of evidence unless the

error affects a substantial right. See id.; Johnson v. State, 967 S.W.2d 410, 417

(Tex. Crim. App. 1998); see also Ruiz v. State, 293 S.W.3d 685, 695 (Tex. App.—

San Antonio 2009, pet. ref’d) (holding admission of extraneous-offense evidence

to be non-constitutional error). “A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s

verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Stated

conversely, a substantial right is not affected by the erroneous admission of

evidence “if the appellate court, after examining the record as a whole, has fair

                                            12
assurance that the error did not influence the jury, or had but a slight

effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

      The three misdemeanor drug convictions about which appellant complains

were hardly the only evidence of appellant’s drug use presented at trial. Appellant,

testifying on his own behalf, admitted that he regularly used marihuana and

Ecstacy in the months preceding the offense, and appellant also admitted smoking

marihuana the night of the offense. Indeed, the three misdemeanor convictions

appellant’s were not appellant’s only drug convictions. Appellant admitted that he

was convicted of possession of cocaine, a felony, and served three years in prison

as a result. And, in addition to the drug convictions, there was evidence of 13

other convictions, all of which were either felonies or crimes of moral turpitude.

      After examining the record as a whole, we cannot say that the error, if any,

affected a substantial right of appellant.

      We overrule point of error two.

                                   CONCLUSION

      We affirm the trial court’s judgment.



                                                  Sherry Radack
                                                  Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).
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