            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0971-08



                                   ERIC SAKIL, Appellant

                                                 v.

                                   THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE EIGHTH COURT OF APPEALS
                             EL PASO COUNTY

               M EYERS, J., delivered the opinion for a unanimous Court.

                                          OPINION

       Appellant, Eric Sakil, was charged with assault, enhanced under Penal Code

Section 22.01(b)(2).1 T EX. P ENAL C ODE A NN. § 22.01(b)(2) (Vernon 2003). At trial, a


       1
        Section 22.01(b) stated: “An offense under Subsection (a)(1) is a Class A misdemeanor,
except that the offense is a felony of the third degree if the offense is committed against . . . a
member of the defendant’s family or household, if it is shown on the trial of the offense that the
defendant has been previously convicted of an offense against a member of the defendant’s
family or household under this section.” TEX . PENAL CODE ANN . § 22.01(b) (Vernon 2003). In
2005, the legislature altered the language of this section. The changes to Section 22.01(b)(2)
apply to offenses committed on or after September 1, 2005. Appellant’s offense occurred on
September 24, 2004.
                                                                                 Sakil–Page 2

psychiatrist testified to Appellant’s present use of prescription medication and former

abuse of drugs and alcohol. The psychiatrist described the behavioral effects of drugs

Appellant had used. However, Appellant’s wife, Claudia, told the 911 operator on the

day of the incident that Appellant was not intoxicated. Nevertheless, the trial judge

believed that the jury might link the evidence of Appellant’s odd behavior on the date of

the assault and his history of substance abuse with the psychiatrist’s description of drug-

induced symptoms. She therefore included an instruction in the jury charge stating that

voluntary intoxication is not a defense. The jury found Appellant guilty, and the court

assessed punishment at seven years’ confinement. Appellant’s first issue in the court of

appeals asserted that the trial court erred by including the voluntary-intoxication

instruction in the jury charge. The court of appeals resolved that issue in favor of

Appellant and reversed the trial court’s judgment. Sakil v. State, No. 08-05-00342-CR,

2008 Tex. App. LEXIS 4230 (Tex. App.–El Paso June 12, 2008, pet. granted). We will

reverse the court of appeals.

I.     Facts

       On September 24, 2004, Claudia Sakil and Appellant engaged in a heated

argument over the paternity of one of her children. Appellant alleged that one of the

children was not his biological child. At one point during the fight, Claudia was able to

lock Appellant out of the apartment. When Appellant forced the door open, breaking the
                                                                                      Sakil–Page 3

lock, part of the door hit Claudia in the face.2 Claudia called 911 and reported that

Appellant had injured her with the door to their apartment. Though she hinted at

Appellant’s previous drug use, Claudia told the 911 operator that Appellant was not

intoxicated.

       At trial, Claudia testified that Appellant behaved oddly during the fight. He was

restless, was not being “himself,” and he believed that he was being followed. Then, a

psychiatrist testified to Appellant’s history of polysubstance abuse and emphasized “a

recorded history . . . that [Appellant] . . . abused drugs and intoxicants.” 3 When asked to

describe the effects of amphetamines, a substance that Appellant admitted to using at the

age of eighteen, the psychiatrist listed hyperstimulation, paranoia, and hypervigilance.

       Despite Claudia’s statement to the 911 operator that Appellant was not intoxicated

on the date of the offense, the judge believed that the jury might find otherwise by

connecting Appellant’s history of drug abuse, his strange behavior, and the physician’s

list of drug-induced symptoms. So, over defense counsel’s objection, the trial judge

included a voluntary-intoxication instruction in the jury charge, which stated:




       2
         In 2003, Appellant was convicted of assault for injuring Claudia during a similar
argument. At that time, Claudia was eight and a half months pregnant, and Appellant accused
her of carrying another man’s child. The conviction, cited in the indictment for the September
24, 2004 assault, enhanced the offense at issue in this case to a third-degree felony under Section
22.01(b)(2). TEX . PENAL CODE ANN . § 22.01(b)(2) (Vernon 2003).
       3
        The physician named four drugs in Appellant’s “lengthy” history of drug abuse, not
including Appellant’s current prescription medications.
                                                                                   Sakil–Page 4

       You are instructed that voluntary intoxication does not constitute a defense to
       the commission of the crime. By the term “intoxication” as used herein is
       meant disturbance of mental or physical capacity resulting from the
       introduction of any substance into the body.

T EX. P ENAL C ODE A NN. § 8.04(a)&(d) (Vernon 2003). The jury found Appellant guilty

of assault, enhanced with his previous conviction for assaulting a member of his family.

T EX. P ENAL C ODE A NN. § 22.01(b)(2) (Vernon 2003). The trial court assessed

punishment at seven years’ confinement.

       On appeal, Appellant argued two points. Sakil, 2008 Tex. App. LEXIS 4230, at

*1. The first issue was whether the trial court erred in including the voluntary-

intoxication instruction in the jury charge. Id. The court of appeals sustained this issue,

deciding that “there was insufficient evidence for any fact finder to reach the conclusion

that Appellant’s psychotic behavior and resulting assault on his wife was [sic] caused by

his voluntary intoxication.” Id. at *7. As a result of this conclusion, the court of appeals

reversed the trial court’s judgment and remanded for further proceedings consistent with

its opinion.4 Id. at *14.

       In response to the State’s petition, we granted four grounds for review, all relating

to the jury instruction on voluntary intoxication: (1) Does a trial court err by submitting a

jury charge that voluntary intoxication is not a defense to prosecution when the evidence



       4
        The second issue was whether the trial court erred in refusing to allow consideration of
past mental problems in assessing the requisite mens rea. Sakil, 2008 Tex. App. LEXIS 4230, at
*1. The court overruled that issue, as the trial court had “not prevented [Appellant] from
presenting evidence of his mental condition.” Id. at *11.
                                                                                      Sakil–Page 5

at trial does not affirmatively show that the defendant was intoxicated; (2) Did the court

of appeals err by holding that there was no evidence from any source that might lead a

jury to conclude that the defendant’s intoxication somehow excused his actions; (3) Does

a trial court’s submission of a jury charge that voluntary intoxication is not a defense to

prosecution “create a presumption that an intoxicated person has the requisite mental

state, thus relieving the state of proving the elements of the offense”; and (4) Did the

submission of an inapplicable, superfluous jury instruction cause some harm to Appellant.

II.    Standard of review

       To review claims of jury charge error, an appellate court must first ask

whether there was error in the charge. Barrios v. State, No. PD-0891-08, 2009 Tex.

Crim. App. LEXIS 523, at *4 (Tex. Crim. App. April 29, 2009). If there was error and if

the appellant objected to the error at trial, “reversal is required if the error is ‘calculated to

injure the rights of [the] defendant,’” meaning that “there must be some harm to the

accused from the error.” 5 Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985). If, however, the appellant did not object to the error at trial, the error must be

“fundamental,” and reversal is required “only if the error is so egregious and created such

harm” that the defendant did not have a fair and impartial trial. Id.

III.   Analysis

       The first issue is whether there was error in the jury charge. Barrios, 2009 Tex.

       5
         “We have interpreted this to mean that any harm, regardless of degree, is sufficient to
require reversal.” Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007).
                                                                                       Sakil–Page 6

Crim. App. LEXIS 523, at *4. If there was no error, we need not pursue a harm analysis.

The instruction at issue, derived from Penal Code Section 8.04, states:

       You are instructed that voluntary intoxication does not constitute a defense to
       the commission of the crime. By the term “intoxication” as used herein is
       meant disturbance of mental or physical capacity resulting from the
       introduction of any substance into the body.6

T EX. P ENAL C ODE A NN. § 8.04(a)&(d) (Vernon 2003).

       Article 36.14 of the Code of Criminal Procedure requires a judge to deliver to the

jury “a written charge distinctly setting forth the law applicable to the case.” C ODE C RIM.

P ROC. A NN. art. 36.14 (Vernon 2007). But what criteria qualify a statement of law as

being “applicable to the case”? Some information, such as the elements of the charged

offense, must appear in the jury charge and is without question “the law applicable to the

case.” 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 36.11

(2d ed. 2001). But a Section 8.04(a) instruction need not appear in every jury charge, and

therefore, there is no sua sponte duty to instruct the jury on that issue, but the judge may

do so, if the question of voluntary intoxication applies to the case.7 See Delgado v. State,

       6
         Section 8.04 contains four subsections, (a) through (d). The instruction here quotes
Subsections (a) and (d). Subsection (a) is directed to the guilt phase of trial. Taylor v. State, 885
S.W.2d 154, 156 (Tex. Crim. App. 1994). Subsections (b) and (c) address substance-induced
temporary insanity as a mitigating factor during the punishment phase and as the subject of a jury
charge. TEX . PENAL CODE ANN . § 8.04(b)&(c) (Vernon 2003). Subsections (b) and (c) are not at
issue in this case.
       7
         That is, as opposed to Section 8.04(c), which requires a jury charge when “temporary
insanity is relied upon as a defense and the evidence tends to show that such insanity was caused
by intoxication.” TEX . PENAL CODE ANN . § 8.04(c) (Vernon 2003). But, as we stated in Taylor,
Subsection (c) sets forth “only certain circumstances in which a trial court must give an
instruction,” and does not “preclude the giving of an instruction if circumstances, different than
                                                                                       Sakil–Page 7

235 S.W.3d 244, 249 (Tex. Crim. App. 2007).

       We have stated that a Section 8.04(a) instruction is appropriate if there is evidence

from any source that might lead a jury to conclude that the defendant’s intoxication

somehow excused his actions.8 Taylor, 885 S.W.2d at 158. The function of a jury charge

is not “merely to avoid misleading or confusing the jury,” but “to lead and to prevent

confusion.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) (quoting

Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)).

       As the trial judge observed, there was a clear possibility for juror confusion due to

the testimony Appellant elicited from his own witness relating to Appellant’s “lengthy”

history of drug abuse:

Defense counsel:       Now, do you have an opinion as to [Appellant’s] medical condition?
Psychiatrist:          Yes, I do.
Defense counsel:       What is that?
Psychiatrist:          . . . there’s a history of polysubstance abuse and dependency. Again,
                       a recorded history in his records that he has abused drugs and
                       intoxicants.

Not only did defense counsel encourage the disclosure of Appellant’s drug use, but he

went so far as to suggest a link between the drug use and Appellant’s symptoms on the

date of the offense. Claudia had already testified, in response to defense counsel’s

questioning, that Appellant was “restless” on the date of the offense, and that Appellant


those outlined in [S]ubsection (c), otherwise raise an issue under either [S]ubsection (a) or (b).”
Taylor, 885 S.W.2d at 156.
       8
        Furthermore, a defendant need not rely upon intoxication as a defense in order for the
charge to feature a Section 8.04(a) instruction. Taylor, 885 S.W.2d at 158.
                                                                                Sakil–Page 8

believed “somebody was following him,” that “somebody was after him.” Then, during

his direct examination of the psychiatrist, defense counsel asked if those symptoms could

relate to drug use:

Defense counsel:      Would it be unusual for [Appellant] to be making reports of people
                      following him or looking for him? Would that be usual for a person
                      like him?
Psychiatrist:         Well, in his particular case, he has expressed those thoughts and
                      problems.
Defense counsel:      Now, you mentioned how some of these problems can be brought
                      about by drug abuse. Would that be the worsening of the problem,
                      or would that be the beginning of the problem, or would the problem
                      lead to drug abuse? Could you tell the Jury?
Psychiatrist:         Well, his history of drug abuse apparently is rather lengthy, so
                      there’s several ways you could look at this. I think from the very
                      beginning the substance abuse has contributed to many of his
                      problems . . . .

The psychiatrist’s later testimony, in response to questioning from the State, increased the

possibility that the jury would detect a cause-and-effect relationship between Appellant’s

drug use and behavior. He stated that Appellant’s drug history included the abuse of

amphetamines, marihuana, alcohol, and heroin; and he explained that a person abusing

amphetamines becomes “hyperstimulated,” “paranoid,” and “hypervigilant.”

       The court of appeals concluded that there was “insufficient evidence for any fact

finder to reach the conclusion that Appellant’s psychotic behavior and resulting assault on

his wife was [sic] caused by his intoxication.” Sakil, 2008 Tex. App. LEXIS 4230, at *7.

We disagree. The evidence did not establish unequivocally that Appellant was
                                                                                    Sakil–Page 9

intoxicated the day of the assault.9 But there was sufficient evidence from which a juror

could conclude that intoxication somehow excused Appellant’s actions.10 By instructing

the jury that voluntary intoxication does not constitute a defense to assault, the trial judge

properly utilized the charge’s function to actively prevent confusion. Therefore, the

inclusion of the contested instruction did not constitute error.11

       Finally, we note that we disagree with the court of appeals’s assessment of

voluntary-intoxication instructions in general. The court stated that a Section 8.04(a)

instruction “effectively creates a presumption that an intoxicated person has the requisite

mental state,” and thus relieves “the State of its burden of proving all elements of the

offense beyond a reasonable doubt.” Id. at *9. The court believed that the instruction

“placed a burden on . . . Appellant to prove that he was not voluntarily intoxicated.” Id.

We do not understand this reading of a voluntary-intoxication instruction. If anything, a

voluntary-intoxication instruction acts to reaffirm the mental-state requirements, not


       9
         Had Appellant not pursued testimony relating to his bizarre behavior the day of the
offense and his extensive history of substance abuse, the following facts would support
Appellant’s position that “there was no evidence from which the jury could conclude Appellant
was voluntarily intoxicated”: (1) he had just been released from jail, so he did not have a
significant amount of time to obtain drugs or alcohol, (2) Claudia reported to the 911 operator
that Appellant was not intoxicated at the time of the offense, (3) Appellant stated that his
amphetamine use occurred at the age of eighteen, and (4), he told the physician that he was not
taking his medication for hallucinations at the time of the offense.
       10
        We previously found a Section 8.04(a) instruction appropriate even when only “slight”
evidence suggested that a defendant’s actions were precipitated by drug use. Taylor, 885 S.W.2d
at 158.
       11
            We need not assess whether Appellant was harmed.
                                                                                Sakil–Page 10

delete them. “[E]vidence of [an] appellant’s intoxication, if any, does not negate the

elements of intent or knowledge”; and, therefore, when the evidence suggests that a

defendant acted under the influence of a substance, the instruction operates to inform the

jury that the elements of the offense, including the requisite mental state, are not affected

by any evidence of intoxication. Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim.

App. 1980). In this case, the instruction prevented evidence of Appellant’s possible

intoxication from altering the jury’s understanding of the crime with which he was

charged: “intentionally, knowingly, or recklessly” causing “bodily injury to another.”

T EX. P ENAL C ODE A NN. § 22.01(a) (Vernon 2003). Moreover, if the court of appeals’s

interpretation were accurate–that a voluntary-intoxication instruction “relieves the State

of its burden of proving all elements of the offense beyond a reasonable doubt”–then, the

charge would be internally contradictory because the charge declares the State’s burden:

“The prosecution has the burden of proving the defendant’s guilt and it must do so by

proving each and every element of the offense charged beyond a reasonable doubt and if

it fails to do so, you must acquit the defendant.” Sakil, 2008 Tex. App. LEXIS 4230, at

*9.

IV.    Conclusion

       We disagree with the court of appeals’s conclusion that there was no evidence of

intoxication sufficient to raise an issue under Section 8.04(a). We hold that it was not

error to include the voluntary-intoxication instruction in the jury charge, and therefore, we
                                                                              Sakil–Page 11

reverse the judgment of the court of appeals and affirm the judgment of the trial court.




                                                                      Meyers, J.




Delivered: July 1, 2009

Publish
