




Death Opinion













IN THE COURT OF

CRIMINAL APPEALS
OF TEXAS





PD-1041-11


KODY WILLIAM FARMER, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY



  Per curiam.

O P I N I O N


 
	Appellant testified that he drove his vehicle after mistakenly taking a combination of
Ambien (a sleeping medication) and Soma (a medication for muscle spasms), instead of the
intended combination of Ultram (a pain medication) and Soma. Appellant's wife laid out his
medications for him that morning and said she put the Ambien off to the side and the other two
medications together, but later when she checked, they were all gone. At trial, appellant's
requested jury instructions on involuntary act were denied. Appellant was convicted of Driving
While Intoxicated.
	On appeal, appellant claimed that the trial court erred in refusing his requested
instructions. The State argued that the proposed instructions improperly commented on the
weight of the evidence. The court of appeals refused to address the State's argument in part
because the State had not made this argument before the trial court. Farmer v. State, No. 02-09-00278-CR slip op. at 12-13 (Tex. App.-Fort Worth April 28, 2011)(memorandum opinion not
designated for publication).
	The State has filed a petition for discretionary review in which it complains of the court
of appeals' failure to address its argument. When the State is the prevailing party in the trial
court, it is not required to present a particular argument in order to raise that argument in a
defendant's appeal; rather, the reviewing court is required to view the evidence in a light most
favorable to the trial court's ruling and uphold the ruling if correct on any theory of law
applicable to the case. See Armendariz v. State, 12 S.W.3d 401, 404-06 (Tex. Crim. App.
2003)(where trial court's ruling denying motion to suppress was supported by record and
correct under a theory of law applicable to the case, court of appeals was obligated to uphold
it), cert. denied, 541 U.S. 974 (2004); see also State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim.
App. 1998)(noting this Court's approval of appellate courts considering alternative theories of
law which support trial court's decision). Whether the requested instruction included an
improper comment on the weight of the evidence was an issue "necessary to final disposition of
the appeal." The court of appeals is required to address "every issue raised and necessary to
final disposition of the appeal."  Tex. R. App. P. 47.1.
	We grant ground one of the State's petition for discretionary review, vacate the
judgment of the court of appeals, and remand this case to that court to address the State's
argument. Ground two is refused without prejudice.
 
DELIVERED SEPTEMBER 14, 2011
DO NOT PUBLISH
