             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00449-CR
     ___________________________

       BRIAN COLLINS, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 211th District Court
          Denton County, Texas
      Trial Court No. F17-1764-211


    Before Kerr, Birdwell, and Bassel, JJ.
   Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

      A jury found Appellant Brian Collins guilty of the third-degree-felony offense

of evading arrest or detention with a vehicle. See Tex. Penal Code Ann.

§ 38.04(b)(2)(A). Collins pleaded “true” to two enhancement paragraphs alleging prior

felony convictions, and his punishment range was thus enhanced to that of a habitual

offender. See id. § 12.42(d). The jury assessed punishment at 95 years’ confinement,

and the trial court sentenced Collins accordingly.

      In three issues, Collins complains that (1) the trial court erred by refusing his

requested jury instruction on involuntary intoxication; (2) the trial court erred by not

instructing the jury on temporary insanity due to voluntary intoxication; and (3) his

punishment was excessive and thus violated his Eighth Amendment rights. We will

affirm.

                                         I.
                                     Background

      On the evening of April 30, 2017, Andrew O’Brien was entering northbound

Interstate 35 in Lewisville when he saw a white U-Haul pickup truck being driven

erratically in a parking lot. According to O’Brien, the truck’s driver was “peeling out”

and driving over curbs. The truck then entered I35, and O’Brien saw it speeding,

swerving, and bumping into guardrails and cement dividers. Concerned that the

truck’s driver was intoxicated, O’Brien called 9-1-1.




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      Kathryn Meadows was also driving on I35 in Lewisville that evening. While

traffic was at a standstill, the white U-Haul truck rear-ended Meadows’s vehicle twice,

and when she tried to get the driver’s attention, he drove off. Meadows followed the

truck and called 9-1-1. While on the phone with the dispatcher, Meadows watched the

truck speeding, swerving, almost hitting cars, and hitting concrete barricades.

      Officer Antonio Barletta with the Lewisville Police Department was dispatched

in response to reports of a possible drunk driver. When Officer Barletta caught up

with Meadows and the white truck, he turned on his lights and then his siren after

seeing the truck speeding and unsafely changing lanes. Even though Officer Barletta

had activated his lights and siren, the driver did not stop. Using his loudspeaker,

Officer Barletta then commanded the driver to pull over and stop. The driver ignored

those instructions and continued to drive evasively and at high rates of speed.

      The chase continued north on I35 and eventually ended in Denton when the

driver stopped the truck in the middle of the highway. The driver—Collins—got out

of the truck and was arrested.

      At trial, Collins testified in his defense. At the time of his arrest, Collins was in

the process of moving his belongings because he and his roommate, Mike Marsh, had

been evicted from their apartment. Collins and Marsh had rented the truck and had

been moving their possessions for a couple of days.

      Collins testified that he had not eaten anything the day of the incident and that

sometime that day, his neck and back “started stiffening up.” Collins called Marsh and

                                            3
asked him for some hydrocodone, for which Marsh had a prescription. Marsh told

Collins to look in Marsh’s backpack, which was in the truck’s cab. Collins found some

pills in a bag inside the backpack, but he did not know which pill was hydrocodone.

Collins took photographs of the pills and sent the photographs to Marsh. Marsh

responded with a photograph of one of the pills. Collins took that pill, which he

believed was hydrocodone because that was what he had asked Marsh for.

        At trial, Collins said that he did not know what he took. He testified that he

had taken hydrocodone before without any reaction. But the medication he took on

April 30 caused him to “space[] out.” He did not remember how he got to Lewisville

or how he got on the highway. He did, however, remember traffic being at a standstill.

He also remembered his “head hitting the steering wheel” and knowing that he had

“bumped someone.”

        Collins testified that he did not immediately notice the police lights or sirens.

And, because he had the truck’s widows up and the radio on, he denied hearing

Officer Barletta’s loudspeaker commands to pull over. He also claimed that until he

viewed Officer Barletta’s dashcam video, 1 he had no recollection of the police chase.

He did remember having trouble following the police officer’s instructions after the

stop.



        The portion of the dashcam video showing the chase, the stop, and Collins’s
        1

arrest at the scene was played for the jury during Officer Barletta’s testimony.


                                            4
       Collins denied knowing that he was evading arrest but conceded that he might

have been driving while intoxicated that evening. In addition to taking the

hydrocodone, Collins admitted to drinking two beers that evening. He also admitted

to not having a prescription for hydrocodone, but testified that he had had a

prescription for it sometime in the 1980s. Collins acknowledged that hydrocodone is

accompanied with a warning against taking it with alcohol.

       Collins requested an involuntary-intoxication jury instruction, which the trial

court denied. The jury found Collins guilty of evading arrest or detention with a

vehicle.

       During the punishment phase, Collins pleaded “true” to the State’s allegations

that he had been previously convicted of two felony offenses: aggravated assault of a

peace officer and tampering with evidence. The State introduced evidence of Collins’s

prior criminal history, and Collins testified. The jury assessed Collins’s punishment at

95 years’ confinement. The trial court sentenced Collins accordingly.

       Collins timely moved for a new trial, arguing that the jury’s punishment verdict

violated state and federal constitutional prohibitions against cruel and unusual

punishment. See Tex. R. App. P. 21.4(a). The following day, the trial court signed an

order denying the motion. See Tex. R. App. P. 21.6.

       Collins has appealed.




                                           5
                                        II.
                                Jury Instruction on
                              Involuntary Intoxication

      In his first issue, Collins argues that the trial court erred during the guilt–

innocence phase of trial by refusing his requested jury instruction on involuntary

intoxication.

A. Applicable law

      In reviewing a jury charge, we first determine whether error occurred; if not,

our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). A trial

court must charge the jury on a defensive theory to the charged offense when

properly requested and raised by any evidence, regardless of its substantive character.

Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997) (discussing jury charge on

voluntariness).

      Involuntary intoxication is an affirmative defense. Farmer v. State, 411 S.W.3d

901, 908 (Tex. Crim. App. 2013) (Cochran, J., concurring). A defendant is entitled to

this defense when the evidence shows that he exercised no independent judgment or

volition in taking an intoxicant, and that as a result of his intoxication, he did not

know his conduct was wrong. See id. at 912. Courts have recognized that a person’s

intoxication can be involuntary when the intoxication arises because of (1) the fault of

another, such as through force, duress, or fraud; (2) the person’s own accident,

inadvertence, or mistake; (3) a physiological or psychological condition beyond the



                                           6
person’s control; or (4) a medically prescribed drug that causes unexpected side

effects. Id. at 913.

B. Analysis

       Collins admitted that he voluntarily ingested alcohol and a pill that he thought

was hydrocodone and that, as a result, he was intoxicated at the time of the incident.

Collins first asserts that if the pill he took was in fact hydrocodone, his intoxication

was involuntary because it was caused by a prescribed drug that produced an

unexpected side effect. But Collins did not have a prescription for hydrocodone. See

Mendenhall v. State, 15 S.W.3d 560, 565 (Tex. App.—Waco 2000) (stating proof that a

defendant took a prescribed medication according to the prescription can satisfy the

first element of the involuntary-intoxication affirmative defense), aff’d, 77 S.W.3d

815 (Tex. Crim. App. 2002). Additionally, involuntary “[i]ntoxication by prescription

medicine occurs only when the person has no knowledge that the medicine has

possibly intoxicating side effects.” Woodman v. State, 491 S.W.3d 424, 429 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d) (citing Mendenhall, 15 S.W.3d at 565–66).

Here, there was no evidence that Collins did not know about hydrocodone’s possible

intoxicating side effects, especially when combined with alcohol. There was only

evidence that he had taken hydrocodone before without “spacing out.” See id.

(concluding that trial court did not err by refusing involuntary-intoxication instruction

where there was no evidence that appellant was unaware of the effects of the



                                           7
morphine and Percocet that had been prescribed to her). Moreover, Collins knew that

one should not combine hydrocodone and alcohol.

      Collins next asserts that if the pill was not hydrocodone, his intoxication was

involuntary because it was caused by either Marsh’s fault or Collins’s mistake. But the

evidence does not show that some force, duress, or fraud on Marsh’s part caused

Collins’s intoxication. See Farmer, 411 S.W.3d at 913 (noting that “courts uniformly

recognize that intoxication caused by another’s force, duress, or fraud, without any

fault on the part of the accused, is involuntary” and that “Texas courts recognize this

fraud or coercion prong of involuntary intoxication”). As for Collins’s alleged mistake,

it was no mistake; he voluntarily ingested an unknown medication that he believed

was hydrocodone and voluntarily combined it with alcohol. See id. at 913–

14 (explaining that “intoxication is involuntary if the defendant voluntarily took the

substance but was unaware of its intoxicating nature” but that “this prong requires

that the defendant’s mistake reaches some threshold of reasonableness before the

defense may be asserted at trial”).

      We conclude that the evidence at trial did not raise the defense of involuntary

intoxication, and the trial court thus did not err by denying Collins’s requested

involuntary-intoxication instruction. We overrule his first issue.




                                            8
                                       III.
                               Jury Instruction on
                 Temporary Insanity Due to Voluntary Intoxication

       In his second issue, Collins argues that the trial court erred by failing to

sua sponte instruct the jury at punishment on temporary insanity due to voluntary

intoxication.

A. Applicable law

       Voluntary intoxication is not a defense to the commission of the offense, see

Tex. Penal Code Ann. § 8.04(a), but a defendant may be entitled to a mitigation

instruction on voluntary intoxication during the punishment phase of trial if there is

evidence of temporary insanity caused by intoxication. See id. § 8.04(b), (c); Martinez v.

State, 17 S.W.3d 677, 691 & n.14 (Tex. Crim. App. 2000). Temporary insanity caused

by voluntary intoxication is considered a defensive issue. See Williams v. State,

273 S.W.3d 200, 222 (Tex. Crim. App. 2008) (comparing capital-murder mitigation

issue with “a number of punishment mitigating factors that are clearly defensive issues,

including temporary insanity caused by intoxication” (emphasis added)); see also Lopez v. State,

544 S.W.3d 499, 503 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing

Williams); Roberson v. State, No. 05-16-00298-CR, 2017 WL 1536510, at *2 (Tex.

App.—Dallas Apr. 26, 2017, pet ref’d) (mem. op., not designated for publication)

(same); Logan v. State, No. 02-11-00409-CR, 2013 WL 3488259, at *2 (Tex. App.—

Fort Worth July 11, 2013, no pet.) (mem. op., not designated for publication) (same).




                                               9
      “[N]o rule or statute requires the trial judge to give instructions on traditional

defenses and defensive theories absent a defendant’s request.” Oursbourn v. State,

259 S.W.3d 159, 179 (Tex. Crim. App. 2008). A trial court is not required to

sua sponte instruct the jury on a defensive issue that the defendant does not request,

and a defendant may forfeit a defensive issue by not preserving it at trial. See Vega v.

State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). A defendant cannot complain on

appeal about the trial court’s failure to include a defensive instruction that he did not

preserve by request or objection. Id.

B. Analysis

      As noted, temporary insanity due to voluntary intoxication is a defensive issue.

See Williams, 273 S.W.3d at 222; Lopez, 544 S.W.3d at 503; Roberson, 2017 WL 1536510,

at *2; Logan, 2013 WL 3488259, at *2. Collins neither objected to the charge nor

requested an instruction based on temporary insanity due to voluntary intoxication.

Accordingly, he did not preserve his second issue. See Vega, 394 S.W.3d at 519; Lopez,

544 S.W.3d at 503; see also Roberson, 2017 WL 1536510, at *2 (“Here, the record shows

appellant did not request an instruction in the charge that the jury could consider the

mitigating effect of temporary insanity caused by intoxication. Because the trial court

has no duty to give an instruction on defensive issues when not requested, we

overrule his first issue.”); Logan, 2013 WL 3488259, at *2 (relying on Williams and

concluding that temporary insanity due to intoxication is a defensive issue on which a

trial court has no duty to sua sponte instruct the jury and that charge was not

                                           10
erroneous where defendant failed to request the instruction). We therefore overrule

Collins’s second issue.

                                         IV.
                               Collins’s Punishment

      In his final issue, Collins argues that his 95-year sentence was excessive and was

thus in violation of his Eighth Amendment right to be free from cruel and unusual

punishment. Collins pleaded “true” to enhancement paragraphs alleging two prior

felony convictions: aggravated assault of a peace officer in 1993 and tampering with

evidence in 2004. Collins’s punishment range was thus enhanced to that of a habitual

offender, and Collins could have been sentenced to “life, or for any term of not more

than 99 years or less than 25 years.” Tex. Penal Code Ann. § 12.42(d). Even though

Collins’s 95-year sentence was within the statutory punishment range, he argues that

his sentence was disproportionate.

A. Applicable law

      Proportionality of punishment is embodied in the Eighth Amendment’s ban on

cruel and unusual punishment and requires that the punishment fit the offense. U.S.

Const. amend VIII. Generally, a punishment that is within the statutory range is not

excessive, cruel, or unusual under the Eighth Amendment and will not be disturbed

on appeal. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (citing Ex

parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)); McCann v. State,




                                          11
No. 02-16-00450-CR, 2017 WL 3428849, at *3 (Tex. App.—Fort Worth Aug. 10,

2017, pet. ref’d) (mem. op., not designated for publication).

      To determine whether a sentence is grossly disproportionate for a particular

crime, the court must examine (1) the sentence’s severity in light of the harm caused

or threatened to the victim, (2) the offender’s culpability, and (3) the offender’s prior

adjudicated and unadjudicated offenses. Simpson, 488 S.W.3d at 323 (citing Graham v.

Florida, 560 U.S. 48, 60, 130 S. Ct. 2011, 2021–22 (2010)); see McGruder v. Puckett,

954 F.2d 313, 315 (5th Cir. 1992); Moore v. State, 54 S.W.3d 529, 542 (Tex. App.—Fort

Worth 2001, pet. ref’d). In those rare times when this threshold is met and gross

disproportionality is determined, the court must then compare the defendant’s

sentence with sentences given to other defendants in the same jurisdiction and with

sentences imposed for the same crime in other jurisdictions. Simpson, 488 S.W.3d at

323 (citing Graham, 560 U.S. at 60, 130 S. Ct. at 2022); Moore, 54 S.W.3d at 542.

B. Analysis

      Collins concedes that his punishment was within the statutory range and admits

that he has “a significant criminal history.” Nevertheless, he argues, the 95-year

sentence was disproportionate because this was his first conviction for evading arrest,

and his evading arrest did not endanger anyone or cause any death, injury, or property

damage.

      Here, even though Collins did not cause any property damage or kill or injure

anyone while evading arrest, “the presence or absence of violence does not always

                                           12
affect the strength of society’s interest in deterring a particular crime or in punishing a

particular criminal.” Rummel v. Estelle, 445 U.S. 263, 275, 100 S. Ct. 1133, 1140 (1980).

The intent of the evading-arrest statute “is to deter flight from arrest or detention by

the threat of an additional penalty, thus discouraging forceful conflicts between police

and suspects.” Duval v. State, 367 S.W.3d 509, 513 (Tex. App.—Texarkana 2012, pet.

ref’d) (citing Alejos v. State, 555 S.W.2d 444, 449 (Tex. Crim. App. 1977)). The statute

“supports an important public policy—encouraging suspects to yield to a show of

authority by law enforcement.” Id. (citing Redwine v. State, 305 S.W.3d 360, 362 (Tex.

App.—Houston [14th Dist.] 2010, pet. ref’d)).

      The evidence shows that Collins’s actions endangered Officer Barletta and

other motorists on I35 on the evening of April 30, 2017: after Officer Barletta turned

on his lights and siren, Collins refused to stop and continued to travel at high rates of

speed (at times exceeding 90 miles per hour) and to weave in and out of traffic for

several minutes before finally stopping. And during punishment, Collins—who was

46 years old at the time of trial—admitted to being in and out of trouble for most of

his adult life. In addition to felony convictions for aggravated assault of a peace

officer and tampering with evidence, Collins’s criminal history included felony

convictions for robbery and aggravated assault and numerous state-jail-felony theft

convictions.

       Based on this evidence, we do not find Collins’s 95-year sentence to be grossly

disproportionate. See Simpson, 488 S.W.3d at 323. Further, there is no evidence in the

                                            13
record comparing Collins’s sentence with sentences given to other defendants in the

same jurisdiction or with sentences imposed for the same crime in other jurisdictions.

See id. (citing Graham, 560 U.S. at 60, 130 S. Ct. at 2022). Accordingly, we overrule

Collins’s third issue.

                                         V.
                                      Conclusion

       Having overruled Collins’s three issues, we affirm the trial court’s judgment.




                                                      /s/ Elizabeth Kerr
                                                      Elizabeth Kerr
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 30, 2019




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