
NO. 07-03-0473-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 14, 2004

______________________________


PEDRO A. NOYOLA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

NO. 2002-481035; HONORABLE LARRY B. "RUSTY" LADD, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
	After appellant Pedro A. Noyola pleaded not guilty, a jury convicted him of driving
while intoxicated, and the trial court assessed a sentence of 180 days confinement,
probated for 24 months, and a $2000 fine.  With one issue, appellant claims "the trial court
erred in denying [his] requested jury charge when [he] presented evidence that raised an
issue as to the reason for [his] behavior."  We affirm.
	During the early morning hours of August 5, 2002, Officer Brandon Price observed
a pickup truck traveling in the center lane that "had drifted into the lane closest to the curb
three different times."  Because "you're required by law to maintain the lane of travel that
you occupy," Price activated his emergency lights to notify the driver of the truck to stop. 
Price identified appellant as the driver and observed that appellant had "bloodshot watery
eyes and swayed as he stood."  Appellant had a strong odor of an alcoholic beverage
coming from his breath when he spoke.  Additionally, appellant admitted to Price that he
had been drinking.  After appellant failed each of the field sobriety tests administered to
him, Price concluded he was intoxicated and arrested him.
	At trial, appellant testified that he was an insulin-dependent diabetic.  He admitted
that he had been drinking earlier in the evening, but vowed that he had gone to bed around
8:00 p.m.  According to appellant, the manager of a bar he owned called around midnight
and asked him to relieve her at the bar.  Appellant went to the bar and stayed there until
he closed it down at 2:00 a.m.  He denied drinking any alcoholic beverages while he was
at the bar.  Appellant asserted that at the time he left the bar to head for home he "wasn't
feeling too good because [he] was feeling real dizzy."  He conceded that there were empty
beer cans in his truck, but he claimed they belonged to a man to whom he had given a ride
earlier in the evening.  Appellant insisted that he was not intoxicated on the night he was
arrested, and that his erratic driving and poor performance on the field sobriety tests
resulted, not from intoxication, but from his inability to adequately control his blood sugar
level.    
	During the charge conference, appellant requested that the following instruction be
included in the charge:
		If the Defendant was suffering from a diabetic condition at the
time and place in question rather than being under the
influence of alcohol, he would not be guilty of the offense
charged even if he was driving a motor vehicle.  Therefore, if
you find from the evidence that on the occasion in question and
at the time of the Defendant's arrest he was suffering from a
diabetic condition or if you have a reasonable doubt thereof,
you will acquit the Defendant.

The State objected to the inclusion of the requested instruction, and the court declined to
include it in the charge.  Instead, the court instructed the jury on the statutory definition of
intoxication, enumerated the elements of the offense, and charged "[t]he State must prove
each element beyond a reasonable doubt before you [the jury] may return a verdict of
'guilty.'"  See Tex. Pen. Code Ann. §§ 49.01(2) & 49.04(a) (Vernon 2003).  In the
application paragraph, the court charged:
		Now if you so find from the evidence beyond a reasonable
doubt that on or about the 5th day of August 2002, in Lubbock
County, Texas, the defendant Pedro Noyola, did unlawfully,
while not having the normal use of mental or physical faculties,
by reason of the introduction of alcohol, a controlled substance,
a drug, a dangerous drug, a combination of two or more of
those substances, or any other substance into the body,
operate a motor vehicle in a public place as charged in the
information, you will find the defendant guilty.  

	With his sole issue, appellant asserts the trial court erred in denying his requested
instruction because he "presented evidence that his appearance, manner and conduct were
due to his improperly regulated diabetic condition and not due to intoxication."  We
disagree.  First, appellant's "diabetic condition defense" goes no further than to merely
negate an element of the offense alleged by the State in its indictment, namely, intoxication. 
See Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Cr.App. 1998), cert. denied, 525 U.S.
1147, 119 S.Ct. 1044, 143 L.Ed.2d 51 (1999) (holding that defendant's alibi defense
involved nothing more than complete negation of his involvement in the commission of the
offense).  As a result, that defense was sufficiently embraced in the general charge to the
jury that the defendant was presumed innocent until he was proven guilty beyond a
reasonable doubt.  Id.  There was ample room within that instruction for appellant to have
argued his defense to the jury.  See id.  In fact, inclusion of appellant's requested
instruction would have been superfluous and would have constituted an impermissible
comment on the weight of the evidence.  See Solomon v. State, 49 S.W.3d 356, 368
(Tex.Cr.App. 2001).   
	Furthermore, because the authority to establish what constitutes a defense rests
solely with the Legislature, a defense which is not recognized by the Legislature as either
a defense or as an affirmative defense does not warrant a separate instruction.  Geisberg,
984 S.W.2d at 250.  The term defense should not be used for an issue that has not been
specifically labeled as such by the Legislature.  Id.; see Tex. Pen. Code Ann. § 2.04(a)
(stating "[a]n affirmative defense in the [Penal] code is so labeled by the phrase: "It is an
affirmative defense to prosecution . . . ").  The defense proposed by appellant is not one
of those enumerated under chapter eight of the Penal Code defining the general defenses
to criminal responsibility.  Neither does the defense appear as an offense-specific defense
under chapter 49 of the Penal Code pertaining to intoxication and alcoholic beverage
offenses.  Nor does appellant advance any other statutory authority for the defense he
would have us sanction. (1)  We conclude, therefore, that the trial court did not err in denying
appellant's requested jury instruction.  His sole issue is overruled.
	Accordingly, the judgment of the trial court is affirmed.
						Don H. Reavis
						     Justice

Do not publish.
 
 
1. In reaching our conclusion, we have not overlooked appellant's reliance upon Loftin
v. State, 366 S.W.2d 940, 941 (Tex.Cr.App. 1963).  We simply agree with the State that the
continued viability of Loftin is suspect considering subsequent decisions by the Court of
Criminal Appeals.  See Geisberg v. State, 984 S.W.2d 245 (Tex.Cr.App. 1998)), cert.
denied, 525 U.S. 1147, 119 S.Ct. 1044, 143 L.Ed.2d 51 (1999) and Solomon v. State, 49
S.W.3d 356 (Tex.Cr.App. 2001).

