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

          No. 02-18-00508-CR
     ___________________________

     ERIC RICHARDSON, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 297th District Court
         Tarrant County, Texas
       Trial Court No. 1536852D


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

       Appellant Eric Richardson appeals from his conviction for driving while

intoxicated. In two points, he challenges a fee assessed against him as a court cost

and the trial court’s denial of his requested jury question on involuntary intoxication.

We affirm the judgment as modified.

                                   I.     Background

       Appellant has a history of suffering seizures. On March 10th, 2018, he was

admitted to Medical City Arlington (MCA) after suffering several seizure episodes. At

the hospital, he was administered anti-seizure medication.             After each seizure,

appellant became temporarily confused. Appellant’s wife testified that when he has a

seizure, “he wakes up dazed and confused, very sweaty, glassy eyed. He doesn’t

remember anything.” While he was at MCA, “[t]here were points that he didn’t

remember why he was in the hospital” and “was in and out of understanding why he

was there.” The doctor who treated appellant in MCA’s emergency room explained

that, after the type of seizures appellant experienced, patients “usually have something

called postictal confusion. It is a confusion status. It is a very debilitating status. . . .

They’re just very, very confused. This lasts for a few minutes to up to two days.”

The doctor stated that appellant had a seizure in the emergency room and as a result

was in postictal status for about fifteen minutes but then returned to his normal

baseline status.



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       MCA doctors originally planned to discharge appellant on March 11, but

because of concerns about medication side effects—appellant became lightheaded

when standing—the treating neurologist recommended that he stay another day.

Around 9:00 p.m. on March 11, appellant’s wife took a shower, planning to sleep on a

sofa in appellant’s hospital room. When she went into the room after her shower,

appellant was no longer there.

       After midnight, Sharilys Velez and her family woke to the sound of appellant

banging on the front door of their house in Arlington and demanding to be let in.

The family did not know appellant or why he was trying to enter their home. Velez

called 9-1-1.

       When police responded, they found appellant in his car slowly reversing his car

from where he had parked it on the street in front of Velez’s house. They stopped

appellant and discovered that he had a gash on the top of his head and that he had an

IV in his arm. An ambulance was called, and once it arrived, officers spoke with

appellant. He admitted that he had been drinking. Officers found open containers of

beer in his car—two 25-ounce cans of Bud Ice beer, one empty and one partially

empty—as well as a receipt for the beer’s purchase at around 10:30 p.m. earlier that

evening. Based on their investigation and appellant’s performance on the horizontal

gaze nystagmus test, the officers decided to arrest appellant for driving while

intoxicated.



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      The ambulance took appellant back to MCA. There, he declined to give the

officers permission for a blood draw, so the officers applied for and received a blood

draw warrant.       Subsequent analysis of his blood showed a blood alcohol

concentration of 0.178 (plus or minus .017).

      At trial, the MCA emergency room doctor who had treated appellant testified

that Keppra, the medication administered to appellant for his seizures, can cause

drowsiness or sleepiness, as well as loss of coordination, as a side effect. He further

stated that taking Keppra with alcohol can increase the side effect of Keppra, and

Keppra can increase alcohol’s effect. However, he further testified that Keppra is not

an intoxicant.

      Appellant’s attorney requested a jury question on involuntary intoxication

based on “the seizures, the Keppra, and the [hospital] treatment”:

            [Appellant’s attorney]: Judge, and one more thing. I just—I might
      request an involuntary intoxication instruction.

             ....

            THE COURT: You mean—well, just tell me what you—in
      general, what you want it to say.

              [Appellant’s attorney]: Well, I mean, basically it would follow the
      language—the voluntariness language in the code that, you know—I
      think I addressed it in voir dire, and if they believe that, you know—that
      this offense was not committed voluntarily, you know, then—to that
      effect.

             THE COURT: Well, okay. But you’re gonna have to—what
      contributed or what evidence in the record is there that he was
      intoxicated involuntarily?


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       [Appellant’s attorney]: I think everything in conjunction with
regards to the seizures, the Keppra, and the treatment at the hospital
just prior to—and we’re talking hours prior to an encounter with law
enforcement at a house.

       THE COURT: Well, I would agree if—if your expert had said
you can become intoxicated or his actions were the result of involuntary
intoxication because of the medication, because the hospital
administered the medication and that was probab—arguably involuntary,
although, I guess he had to consent to that. But there’s nothing in the
record that says that it—it was solely the result of the Keppra. And
if you’re gonna say, Well, it’s a combination, then—then the purchase of
the Bud Ice and drinking the Bud Ice, there’s nothing to say that that
was involuntary. There’s nothing in the record that speaks to that.

      [Appellant’s attorney]: Yes, Judge.

      THE COURT: I just—I’ll think about it. If you want to have a
proposed charge that you want to put in the record, that’s—I’ll think
about it, but

      I—

       [Prosecutor]: Judge, that’s like saying that someone else gave him
all the alco—I mean, someone else dosed him and he didn’t give it to
himself.

      THE COURT: Well, you’re not gonna get it—

      [Prosecutor]: There’s no evidence of that.

      THE COURT: You’re just—you’re not gonna get it based upon
the totality and the—and the combination of—of drugs and alcohol
because the alcohol was a voluntary act. There’s nothing to say that the
consuming of alcohol was involuntary.

      [Appellant’s attorney]: And—

       THE COURT: So then—so then you’re left with, Okay, well, was
it just the Keppra? And because he’s having seizures, that’s not
intoxication. So then you have—then you have to rely on the Keppra


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      and there’s just nothing in the—in the—in the record to say that it was
      just the Keppra and that was involuntary.

            [Prosecutor]: And Keppra is not an intoxicating substance. I
      mean, there was testimony about that.

            [Appellant’s attorney]: I’m not claiming that it is.

             THE COURT: Hence my point about nothing in the record
      stating that. So, you know, if Dr. What’s-His-Name would have said
      that, then you might be there, but I just—I just can’t—I just can’t get
      there. I—I just can’t see that—that anything contributing to his
      intoxication, if any, would have been involuntary other than the
      administering of the medication which is combined with the
      alcohol was—had to have been—alcohol would have had to have
      been a voluntary act, so I just—I just can’t go there with you, Counsel.
      Novel theory, though.

             [Prosecutor]: Can the State just put something on the record too
      real quick? The medical records—

            THE COURT: If you must.

             [Prosecutor]: The medical records make it clear that this
      defendant consented and anything that’s given to him in the hospital is,
      therefore, voluntary. He’s not being held there against his own free will
      and dosed with medicines that he has not consented to the
      administration of.

             THE COURT: Yeah, I kind of said that. Thank you for adding to
      it though.

            [Prosecutor]: You’re welcome.

            THE COURT: All right. Anything else?

            [Appellant’s attorney]: Nothing further, Judge.

[Emphasis added.]




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      At the trial conference, appellant’s attorney read a proposed involuntary

intoxication question into the record. The trial court denied the requested instruction.

The jury found appellant guilty and assessed punishment at four years’ confinement

and a $1,000 fine. The trial court sentenced appellant accordingly.

                      II.   Emergency Medical Services Fee

      In appellant’s first point, he challenges the “Emergency Medical Services” fee

assessed against him as a court cost. He argues that article 102.0185(a) of the Texas

Code of Criminal Procedure, the statutory provision on which the fee was based, is

facially unconstitutional. See Tex. Code Crim Proc. Ann. art. 102.0185(a). Based on

this court’s opinion in Casas v. State, 524 S.W.3d 921, 927 (Tex. App.—Fort Worth

2017, no pet.), the State concedes the point. Accordingly, we modify the judgment to

omit the challenged fee.1

                                 III.   Jury Charge

      In appellant’s second point, he argues that the trial court erred by denying his

requested jury charge on involuntary intoxication.

      Although appellant’s attorney mentioned appellant’s seizures in initially arguing

for the instruction, from trial court’s statements in response, the trial court clearly

focused the discussion on whether there was any evidence that appellant’s medication,


      1
        The legislature amended this article after this court’s Casas opinion, but the
changes do not apply to a conviction for an offense committed before the effective
date of the amendment. We make no comment on the effect of that amendment.


                                           7
either alone or in combination with alcohol, was an intoxicant, and appellant’s

attorney did not argue that evidence of appellant’s seizures could support submitting

an involuntary intoxication question.      Appellant’s requested instruction further

clarified the parameters of the request:

            Section 6.02(a) of the Texas Penal Code states a person commits
      an offense only if he voluntarily engages in conduct including an act an
      omission or possession[.]

              ....

             A defense asserted in this case is that the defendant was
      involuntary[ily] intoxicated to the point that he could not form the intent
      to voluntarily engage in criminal conduct under Section 6.02(a).

            As a result of taking a substance as prescribed, the defendant
      was so intoxicated that he could not form the intent to voluntarily
      engage in conduct at the time of the offense.

             In determining the issue of involuntary intoxication, you may
      consider the testimony of expert and nonexpert witnesses. The use of
      medications[,] . . . consumption of intoxicating liquor, drug, or other
      substance that merely arouses passion, diminishes perceptions, releases
      inhibition, or clouds reason and judgment does not excuse the
      commission of a crime; therefore, if you find that the defendant was
      involuntarily intoxicated to the extent of being incapable of forming the
      necessary voluntary[] intent to engage in the conduct, or if you have a
      reasonable doubt thereof, you should find the defendant not guilty.
      [Emphasis added.]

      Appellant did not request an instruction that because of the effects of his

seizures, he committed a nonvolitional act. He requested an instruction that because

of the medication prescribed and administered to him to treat his condition, he did

not have the normal use of his mental or physical faculties such that he could not



                                           8
form the intent to voluntarily engage in conduct at the time of the offense. See Tex.

Penal Code Ann. § 49.01(2) (defining “intoxicated”). While some testimony at trial

indicated that his medication could make a patient drowsy or uncoordinated, no

evidence supported a finding based on the instruction appellant requested. Instead,

the only evidence at trial was that Keppra is not an intoxicant. Accordingly, regardless

of whether involuntary intoxication is a defense to DWI offenses in Texas, see Farmer

v. State, 411 S.W.3d 901, 908 (Tex. Crim. App. 2013) (Cochran, J., concurring) (stating

that Texas law recognizes an affirmative defense of involuntary intoxication when the

accused has no independent judgment or volition in taking the intoxicant and, as a

result of his intoxication, did not know that his conduct was wrong), appellant was

not entitled to his requested involuntary intoxication instruction. See id. at 906 (stating

that a defendant is entitled to a jury instruction on a defensive issue raised by the

evidence).

                                   IV.    Conclusion

      We modify the trial court’s judgment to omit the Emergency Medical Services

fee, and we affirm the judgment as modified.




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                                  /s/ Wade Birdwell
                                  Wade Birdwell
                                  Justice

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

Delivered: August 28, 2019




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