                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00439-CR

JOHN CARL ARABIE, JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                            From the 54th District Court
                             McLennan County, Texas
                             Trial Court No. 2012-82-C2


                                     OPINION


       John Carl Arabie, Jr. was convicted of murder and sentenced to life in prison. See

TEX. PENAL CODE ANN. § 19.02 (West 2011). Because the trial court did not err in

denying his requested punishment phase jury instruction on temporary insanity due to

intoxication, we affirm the trial court’s judgment.

BACKGROUND

       David Sanders was shot at his home during the early morning hours of October

23, 2011. Someone had been at his front door while Sanders was watching a ball game.
Sanders did not open the door but saw that a person with a dark shirt and light pants

was at the door. When the person left the front door, Sanders went to check his back

door. Sanders’s wife heard a shot and then found her husband, with a gunshot wound

to his head, inside the back door. He had been shot through the back door window. A

person matching the description of the individual at Sanders’s front door was located

and taken into custody behind Sanders’s property soon after the shooting. A gun was

also located in the area. Sanders’s wife told police that Sanders had recently sold a

vehicle to Arabie. The person in custody was Arabie. The car which Sanders sold to

Arabie was parked down the street from Sanders’s home.

TEMPORARY INSANITY-INTOXICATION

        In one issue, Arabie argues the trial court should have instructed the jury at the

punishment phase regarding the mitigating issue of temporary insanity due to

intoxication.     Arabie requested the inclusion of the instruction in the charge on

punishment. Although Arabie directed the trial court to evidence in the record of

Arabie’s intoxication, he did not direct the trial court to evidence which Arabie believed

would show that because of his intoxication, he did not know his conduct was wrong.

The State pointed out this deficiency, and the trial court denied Arabie’s requested

instruction.

Law

        Insanity is an affirmative defense to prosecution that, at the time of the conduct


Arabie v. State                                                                     Page 2
charged, the actor, as a result of severe mental disease or defect, did not know that his

conduct was wrong.              TEX. PENAL CODE ANN. § 8.01(a) (West 2011).                      Voluntary

intoxication is not a defense to the commission of a crime; but evidence of temporary

insanity caused by intoxication may be introduced by the actor in mitigation of his

punishment.1 TEX. PENAL CODE ANN. § 8.04(a), (b) (West 2011). In other words, unlike

the defense of insanity which would bar the conviction of a crime, evidence of

temporary insanity caused by intoxication, could be used by a jury to lessen the

punishment, i.e., time in jail/prison or fine or both, it assesses for the convicted person.

          When temporary insanity is relied on as a defense and the evidence tends to

show that the insanity was caused by intoxication, the court is to charge the jury in

accordance with the provisions of section 8.04.2 Id. (c). The trial court, however, is not

prohibited from giving a mitigation instruction if circumstances, different than those

outlined in subsection (c), otherwise raise an issue under either subsection (a),

voluntary intoxication, or (b), temporary insanity due to intoxication.                     Taylor v. State,

885 S.W.2d 154, 156 (Tex. Crim. App. 1994).

          Like the affirmative defense of insanity and any other defensive issue, whether

an appellant was entitled to a mitigation instruction under section 8.04(b) depends

1   (a) Voluntary intoxication does not constitute a defense to the commission of crime.

    (b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in
    mitigation of the penalty attached to the offense for which he is being tried.

2   (c) When temporary insanity is relied upon as a defense and the evidence tends to show that such
     insanity was caused by intoxication, the court shall charge the jury in accordance with the provisions of
     this section.

Arabie v. State                                                                                        Page 3
upon whether the issue is raised by the evidence. San Miguel v. State, 864 S.W.2d 493,

495-496 (Tex. Crim. App. 1993) (temporary insanity); cf. Coble v. State, 871 S.W.2d 192,

202 (Tex. Crim. App. 1993) (insanity); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App.

2001) (self-defense). However, before it is necessary for the trial court to affirmatively

instruct the jury on voluntary intoxication as mitigating evidence at the punishment

stage of the trial, the defendant must establish that he was intoxicated and that the

intoxication rendered him temporarily ”insane.” Arnold v. State, 742 S.W.2d 10, 14 (Tex.

Crim. App. 1987); Cordova v. State, 733 S.W.2d 175, 190 (Tex. Crim. App. 1987). To do

this, the affirmative defense of insanity is considered together with the mitigation issue

of temporary insanity due to intoxication. Id. Thus, the defendant must establish that

his voluntary intoxication caused him to not know his conduct was wrong. Mendenhall

v. State, 77 S.W.23d 815, 817-818 (Tex. Crim. App. 2002). See also Ex parte Martinez, 195

S.W.3d 713, 722 (Tex. Crim. App. 2006). He must do more than merely present evidence

of intoxication or even gross intoxication. Arnold, 742 S.W.2d at 14.

        When to give the mitigation instruction for temporary insanity due to

intoxication is more problematic than most defensive or mitigation instructions. The

often stated standard for giving any defensive-type instruction is “An accused is

entitled to an instruction on every defensive or mitigating issue raised by the

evidence… regardless of whether the evidence is strong or weak, unimpeached or

contradicted and regardless of whatever the trial judge may think about the credibility


Arabie v. State                                                                      Page 4
of the evidence.” Arnold v. State, 742 S.W.2d 10, 13 (Tex. Crim. App. 1987) (temporary

insanity). See also Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008) (consent);

Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001) (self-defense); Granger v. State, 3

S.W.3d 36, 38 (Tex. Crim. App. 1999) (mistake of fact). This standard indicates that

“some” evidence is sufficient. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App.

2003). In determining whether a defense is raised, the court must rely on its own

judgment, formed in the light of its own common sense and experience, as to the limits

of rational inference from the facts proven. Shaw v. State, 243 S.W.3d 647, 658 (Tex.

Crim. App. 2007). The evidence presented must be such that it will support a rational

jury finding as to each element of the defense or mitigation issue.3 See id.

        We have dealt with this general instruction standard and its application in a

number of cases in recent years.4 Likewise, the other courts, including the Court of

Criminal Appeals, have frequently been required to address the issue.5



3As stated previously, the elements of the mitigation issue of temporary insanity due to intoxication are:
1) intoxication, and 2) such intoxication was sufficient to render the defendant temporarily insane.

4Harrison v. State, ___ S.W.3d ___, No. 10-12-00103-CR, 2013 Tex. App. LEXIS 11635, (Tex. App.—Waco
Sept. 12, 2013, no pet. h.); Busby v. State, No. 10-12-00250-CR, 2013 Tex. App. LEXIS 10615 (Tex. App.—
Waco Aug. 22, 2013, no pet. h.) (not designated for publication); Ray v. State, ___ S.W.3d ___, No. 10-12-
00271-CR, 2013 Tex. App. LEXIS 4939 (Tex. App.—Waco Apr. 18, 2013, no pet. h.); Peck v. State, No. 10-11-
00386-CR, 2012 Tex. App. LEXIS 9343 (Tex. App.—Waco Nov. 8, 2012, pet. ref’d) (not designated for
publication); Villa v. State, No. 10-09-00385-CR, 2011 Tex. App. LEXIS 3782 (Tex. App.—Waco May 18,
2011, pet. ref’d) (not designated for publication).

5See e.g. Celis v. State, ___ S.W.3d ___, 2013 Tex. Crim. App. LEXIS 759 (Tex. Crim. App. May 15, 2013);
Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim.
App. 1999); Loris v. State, No. 02-11-00464-CR, No. 02-11-00465-CR, No. 02-11-00466-CR2013 Tex. App.
LEXIS 9669 (Tex. App. —Fort Worth Aug. 1, 2013, no pet. h.) (not designated for publication); Isaacson v.
State, No. 03-10-00866-CR, 2013 Tex. App. LEXIS 5807 (Tex. App.—Austin May 10, 2013, no pet.) (not

Arabie v. State                                                                                    Page 5
        It is not the introduction of the evidence that presents the problem for the trial

courts but rather whether the charge will include an instruction. There are several

reasons for this difficulty.

        First: It is not infrequent that there is evidence of alcohol consumption
        and impairment of motor skills and decision making involved in any
        particular crime, but especially murder. Alcohol consumption may even
        lead to unusual or bizarre behavior. But that does not mean that in every
        such case the instruction is required.

        Second: Judges and jurors tend to think of insanity as a defense to the
        offense not as a basis for mitigation of the offense’s punishment.

        Third: Trial court judges are trained from the time before they are judges
        that a state trial court judge should never comment on any evidence. See
        Davis v. State, 313 S.W.3d 317, 330 (Tex. Crim. App. 2010) (any instruction
        suggesting that intoxication can be a defense to a crime would be
        improper and would constitute a comment on the weight of the evidence);
        Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001) (because
        “independent impulse” defensive instruction would simply negate the
        conspiracy liability element of the State's case, inclusion would be a
        comment on the weight of the evidence); Giesberg v. State, 984 S.W.2d 245,
        250 (Tex. Crim. App. 1998) (same for alibi instruction).

        Fourth: In death penalty cases, while specific mitigation instructions may
        not be required, if a defendant receives an instruction on temporary
        insanity due to intoxication, it could present the problem of allowing the
        use of any mitigation evidence only if the jury finds it rises to the level of
        temporary insanity. See Tucker v. State, 771 S.W.2d 523, 534 (Tex. Crim.
        App. 1988).

Thus, when these factors are added to the determination of whether the trial court is

required to give the instruction in a particular case, based on the evidence that has



designated for publication); Herrera v. State, No. 01-12-00548-CR, 2013 Tex. App. LEXIS 4824 (Tex. App.
Houston 1st Dist. Apr. 18, 2013, no pet.) (not designated for publication).

Arabie v. State                                                                                 Page 6
already been admitted and is before the jury, it makes the decision process more

difficult. As in all defensive or mitigation type instruction cases, we encourage the trial

court to give the instruction in close cases rather than jeopardize the time and efforts of

everyone and risk a reversal because an appellate court may determine the evidence

raised the defensive or mitigation issue.

        Nevertheless, in cases such as this, when the instruction is requested and not

given, we must determine whether the trial court erred. See Middleton v. State, 125

S.W.3d 450, 453 (Tex. Crim. App. 2003).

        We have found very few cases which hold the trial court should have instructed

the jury on this mitigation issue, and Arabie points us to no others.6

        In one case, the court of appeals held that the defendant’s testimony that the

cocaine he had taken at the time of the offense made things seem unreal, that he did not

know what he was doing, and that he did not realize what was happening was

sufficient to entitle him to an instruction on voluntary intoxication at the punishment

stage of his trial. Frias v. State, 775 S.W.2d 871, 873 (Tex. App.—Fort Worth 1989, no

pet). The court reasoned that “Although he did not specifically testify that he did not

6 On the other hand, there are plenty of cases which point out what evidence does not require the
mitigation issue. See e.g. Cordova v. State, 733 S.W.2d 175, 190 (Tex. Crim. App. 1987) (where one presents
evidence that he was intoxicated or "crazy drunk" when he committed the crime does not automatically
mean that when the individual committed the crime he was then temporarily insane by reason of
intoxication); Bean v. State, No. 02-05-00353-CR, 2006 Tex. App. LEXIS 9060 (Tex. App.—Ft. Worth Oct. 19,
2006, pet. ref’d) (not designated for publication) (defendant’s testimony that he was high and dazed and
was not thinking clearly did not establish that he did not know his conduct was wrong); Lee v. State, 874
S.W.2d 220, 224 (Tex. App. Houston 1st Dist. 1994, pet. ref’d) (complainant's testimony that appellant was
"totally in a rage, like a person out of his mind," was insufficient to require a jury instruction on
temporary insanity caused by voluntary intoxication).

Arabie v. State                                                                                     Page 7
know that what he was doing was wrong, if he were so intoxicated that the situation

seemed unreal, and if he were so intoxicated that he did not know what he was doing

or realize what was happening, it follows that he was so intoxicated as to not know that

his conduct was wrong because he could not have known that his conduct was wrong if

he did not know what his conduct was.” Id. The court went on to hold, however, that

the trial court’s failure to submit the mitigation issue was harmless. Id. at 873-874.

        In Harvey v. State, the appellant testified that he did not know that his conduct

was wrong as a result of his intoxication at the time he committed the offense. Harvey v.

State, 798 S.W.2d 373, 375 (Tex. App.—Beaumont 1990, no pet.). The Beaumont Court of

Appeals held that this was sufficient to require the submission of the appellant’s

requested instruction on mitigation of punishment due to temporary insanity caused by

intoxication. Id. The court held, however, that the trial court’s error was harmless.

        In Perez v. State, the Court of Criminal Appeals, in holding that the instruction

presented to the trial court relative to temporary insanity was an incorrect statement of

the law, noted that “the testimony relative to temporary insanity is very meager indeed,

and barely, if at all, calls for an instruction thereon. Perez v. State, 172 S.W.2d 314, 315

(Tex. Crim. App. 1943) (op’n on rhg). The testimony relative to the instruction came

from the defendant’s wife who said, “’I think this drinking on my husband's part has

had the effect of interfering with his ability to tell right from wrong; he never gets in

any trouble unless he is drinking like that. I think he is mentally affected only when he


Arabie v. State                                                                          Page 8
is drinking like that, he gets like that in trouble and they pick him up. He has never

been treated for it.’” Id.

Evidence

        Arabie points to the following testimony as evidence of his temporary insanity

by intoxication which he argues would require the requested instruction to be included

in the charge. Arabie told police he was an alcoholic and admitted to drinking alcohol.

He claimed he was walking to a convenience store to get more beer when he was

detained. One officer thought this story did not make sense because Arabie had passed

other stores on his way to a store that was closed. Another officer thought Arabie had

been drinking “a bunch.” Arabie showed some effects of alcohol–he smelled like it and

slurred his speech a little bit. An open can of a “Four Loko” malt beverage was found

inside Arabie’s car.     The officer testified that he was aware that Four Loko was

advertised as “an extremely high alcohol, highly caffeinated malt beverage” that is fruit

flavored. He placed the alcohol content of Four Loko as more than beer and a little less

than wine. He stated that the alcohol content of hard liquor was much higher. There

was testimony that Arabie’s demeanor would change from being talkative to not

talkative and to being belligerent to the extent of wanting to be just taken away.

        The closest Arabie’s evidence may be to raising the issue is the following

exchange between Arabie’s trial counsel and the officer who first encountered Arabie.




Arabie v. State                                                                      Page 9
           Q:       I seem to recollect he kept insisting he didn’t know these two girls.7

           A:       Yes.

           Q:       Did he seem confused about why he was under arrest?

           A:       Um, in that aspect, yes, he was concerned about the girls.

           Q:       Yeah, he kept talking about there’s two girls over there, I don’t know
                    those girls, or something along those lines; is that right?

           A:       Yes.

           Q:       And he went on and on for about 15 minutes, or 20 minutes maybe?

           A:       Yes, sir.

           Q:       Were you ever able to figure out what – what he was talking about?

           A:       Uh, in regards to two girls?

           Q:       Yes.

           A:       Two girls had approached us. They – they saw a bunch of lights and
                    police cars parked up the street and I think they were just concerned
                    citizens. I didn’t really talk to them.

           Q:       Did he make some sort of statements to you like, I’m gonna be a rapist,
                    you’re gonna say I’m a rapist or something like that?

           A:       I don’t remember that specifically, sir.

But when this testimony is reviewed in the context of the events of the night, it appears

to be a mere effort to deflect attention from the murder and an effort by Arabie to

confuse the officers.


7   This is the first time the “two girls” incident is mentioned at trial.

Arabie v. State                                                                              Page 10
         Further, when this officer first encountered Arabie within minutes of the offense,

Arabie was walking away from the scene toward the front of the building of a local

business. He would not stop, even saying “no,” when the officer ordered him to stop.

Arabie then turned from the officer, grabbing at the side of his waist as if trying to

retrieve a weapon. He disappeared behind the building and other officers at the scene

heard a thud, as if something was being thrown on the ground. Arabie reappeared

from behind the building with his hands up and submitting to the officer who first

encountered him. A gun was located in the area to which Arabie had retreated. This

action tends to show that Arabie knew what he was doing. Graham v. State, 566 S.W.2d

941, 951 (Tex. Crim. App. 1978) (attempts to conceal incriminating evidence and to

elude officers can indicate knowledge of wrongful conduct).

Application

         Although there was evidence that Arabie had been drinking and showed signs of

intoxication, possibly even to the point of being confused, there was no evidence that

Arabie’s intoxication caused him to not know his conduct in murdering Sanders was

wrong. We do not find that the evidence of his varying demeanor or his ongoing

concern that he would be accused of rape was evidence of this element of the mitigation

issue.     Accordingly, the trial court did not err in denying Arabie’s requested

punishment instruction.




Arabie v. State                                                                     Page 11
CONCLUSION

        Arabie’s sole issue is overruled, and the trial court’s judgment is affirmed.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis concurs without an opinion)
Affirmed
Opinion delivered and filed October 17, 2013
Publish
[CRPM]




Arabie v. State                                                                         Page 12
