                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00278-CR


KODY WILLIAM FARMER                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

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      MEMORANDUM OPINION1 ON STATE’S PETITION FOR
               DISCRETIONARY REVIEW
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      After reviewing the State‘s petition for discretionary review, we withdraw

our February 17, 2011 opinion and judgment and substitute the following. See

Tex. R. App. P. 50.

                                   I. Introduction

      In one point, Appellant Kody William Farmer appeals his conviction for

driving while intoxicated (DWI). We reverse and remand for a new trial.

      1
       See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      This is the case of the mistaken pill.

      Around 8:00 a.m. on April 19, 2008, Farmer rear-ended Randall Cox‘s

vehicle on Interstate 35. After both drivers moved to the shoulder and exited

their vehicles, Cox noted that Farmer had difficulty walking around his vehicle—

staggering and weaving—and he slurred his words, although Cox could not smell

any alcohol on him. Cox asked Farmer for his insurance information, and Farmer

gave him a business card. Cox returned to his vehicle and called 911 because

he did not think it was safe for anyone in Farmer‘s condition to be driving. While

Cox was on the phone, Farmer returned to his vehicle and drove away.

      Cox followed Farmer, and when he reached the top of the exit ramp, he

saw Farmer‘s vehicle at the corner of the service road and an intersecting street;

it was impaled on a post. The vehicle‘s engine was running, the backup lights

were on, and the wheels were slowly turning in reverse. Although the door was

open, Farmer was still inside. The airbag had not deployed, there was no blood

or shattered glass, and Farmer did not appear injured, but he was not responding

to the OnStar service representative‘s inquiries.

      Fort Worth Police Officer Timothy Lee, the first officer on the scene, stated

that he neither smelled alcohol nor suspected that Farmer had been drinking

before the accident.    Rather, he believed that Farmer was intoxicated from

something other than alcohol because Farmer appeared sluggish and had

slurred speech, an unsteady walk, and difficulty keeping his eyes open. Officer


                                          2
Lee testified that Farmer shook his hand, and when he let go, Farmer fell towards

him. The officer had to catch him to keep him from falling down, and he put

Farmer in his patrol vehicle because he feared Farmer might injure himself by

falling. Most of Farmer‘s answers to Officer Lee‘s questions were unclear, and

he had a difficult time understanding Farmer‘s speech.         Farmer was very

cooperative and consented to a blood draw at the hospital. Inside Farmer‘s

vehicle, Officer Lee found a bag containing three prescription bottles: Tramadol

HCL, Zolpidem, and Carisoprodol.       He also found several blister packs of

Benadryl, Amatrix, and Celebrex.

      Detective D.M. Carabajal assisted Officer Lee with the DWI investigation.

Detective Carabajal testified that Farmer had slurred speech, slow movements,

and appeared ―out of it,‖ and that Farmer told Detective Carabajal that he had not

consumed alcohol. Detective Carabajal did not detect any odor of alcohol. He

suspected that Farmer was under the influence of a drug.          In response to

questioning, Farmer initially indicated that he had taken some Benadryl but later

stated that he had taken some Soma and Ultram.2              Detective Carabajal

administered field sobriety tests to Farmer. Although Farmer only displayed two

of the possible six clues on the horizontal gaze nystagmus test, he had a hard




      2
       The charging instrument lists Zolpiden and Tramadol as the controlled
substances causing Farmer‘s impairment. Tramadol is the generic name for
Ultram, and Zolpidem is the generic name for Ambien.


                                        3
time keeping his eyes open and keeping his balance during testing, and he failed

both the one-leg-stand and walk-and-turn tests.

         At the hospital Farmer told Sandra Enriquez, the nurse who performed the

blood draw, that he was taking two prescription drugs, Soma and Ultram. The

blood test revealed that Farmer‘s blood contained 127 nanograms of Ultram per

milliliter of blood and 185 nanograms of Ambien per milliliter of blood. These

levels were within the range of what one would expect somebody to have if they

had taken the commonly prescribed amounts of these drugs within a few hours of

the time of the blood draw. Enriquez stated that at the time of the blood draw,

Farmer‘s pupils were very large, almost black and that Ambien can cause this

side effect. He also had slurred speech and could barely hold himself up in the

chair.

         Ambien, which is taken for insomnia, is a prescription drug and a controlled

substance.3      Dr. Angela Springfield, chief toxicologist for the Tarrant County

Medical Examiner‘s Office, testified that someone who took Ambien would have

considerable difficulty going about his daily functions, would not be as aware of

his surroundings, might be confused, and might have difficulty driving because

the effects of Ambien and alcohol are similar in many respects.            Ambien‘s

recommended dosage usually induces sleep within fifteen to thirty minutes.



         3
      The trial court took judicial notice that Ambien is a drug specifically listed
under Penalty Group 3 of the Controlled Substances Act.


                                           4
      Ultram is also a prescription drug and a dangerous drug; it is a synthetic

opiate that is prescribed for pain and that causes drowsiness, dizziness, and

sleepiness. Mixing Ultram with Ambien would increase the effects of drowsiness.

Ultram and Ambien are both white pills with the same shape, but one is slightly

larger than the other. Soma is also a white pill, but an Ambien pill is smaller than

a Soma pill.

      Farmer testified that he had suffered from chronic back pain due to a work-

related injury and that he had taken different pain medications on and off for ten

years. He also testified that four days prior to the accident, he was prescribed

Soma to control muscle spasms and was given his first prescription for Ambien to

help him sleep.4 He had taken Ultram, on and off, for seven years. Farmer woke

up aching almost every morning and usually took Ultram. The labels on both

Soma and Ultram warn that they may cause drowsiness, and both his doctor and

his pharmacist recommended that he be within minutes of going to bed before

taking Ambien. Farmer does not like taking medication at all, so his wife sets the

pills out for him and tries to make sure that he takes them. She puts them on top

of the microwave, and he grabs them.

      Farmer did not remember taking any medications the morning of the two

accidents, but he admitted that he obviously had. Usually, if he was commuting

from Aledo to Carrollton for work, he would take Ultram before getting in the


      4
       He had not taken any pills from the Celebrex or Amatrix packets that the
doctor also gave to him.

                                         5
shower, and sometimes Soma. Farmer said that he took Ultram that morning

and ―I guess Soma. I thought—is what I thought I was taking.‖

      The last thing Farmer remembered before the accident was stopping at the

gas station down the road from his house, about twenty miles from where the first

accident occurred. Based on the way he appeared in the video from Officer

Lee‘s vehicle, Farmer agreed that he did not have the normal use of his mental

or physical faculties.   And based on the blood test results, he believed his

condition was caused by the Ambien. He stated that he did not intentionally take

Ambien that morning and that he had never taken it since.

      Kimberly, Farmer‘s wife, testified that she was afraid Farmer would not

take his medication, and because the doctor had stressed how important it was

for him to take his pills, she laid them out on top of the microwave daily so she

would know that he took them. That morning, she laid out his pills on top of the

microwave, separating the Ultram from the Ambien.        She did not remember

seeing him take the medication that morning, but she remembered it was gone

and was certain he had taken both pills because the Ambien she had laid out for

that night was gone.

      At the close of testimony, the trial court noted that the issue of

voluntariness had been raised, but it denied Farmer‘s requested instruction on

the issue. The jury found Farmer guilty of DWI, and the trial court sentenced

Farmer to ninety days‘ confinement, suspended for one year, and a $200 fine,

and it placed him on community supervision for a year. This appeal followed.


                                       6
                                III. Voluntary Act

      In his sole point, Farmer argues that the trial court erred by denying his

request for a jury instruction on whether he committed a ―voluntary act.‖ He

requested the following instruction:

      A person commits an offense only if he voluntarily engages in
      conduct, including an act, or omission. Conduct is not rendered
      involuntary merely because the person did not intend the results of
      his conduct. Therefore, if you believe from the evidence beyond a
      reasonable doubt that the defendant . . . did not have the normal use
      of his mental or physical faculties by reason of the introduction of a
      controlled substance to-wit: zolpidem, tramadol, or a combination of
      two or more of these substances, but you further believe from the
      evidence, or have a reasonable doubt thereof, that [he] . . . took
      these drugs by accident, and it was not the voluntary act or conduct
      of the defendant, you will acquit the defendant and say by your
      verdict ―not guilty.‖

             You are instructed that involuntary intoxication by prescription
      medication, or medications, is a defense to prosecution for an
      offense when it is shown that the accused has exercised no
      independent judgment or volition in taking the intoxicant; and as a
      result of his intoxication he did not know that his conduct was wrong
      or was incapable of conforming his conduct to the requirements of
      the law he allegedly violated. [Emphasis added.]

A. Standard of Review

      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v.

State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).             Initially, we must

determine whether error occurred.       If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at

731–32. When the evidence raises the issue of the conduct of the defendant not



                                        7
being voluntary, the jury must be charged, when requested, on the issue of

voluntariness. Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997).

Failure to give the instruction is subject to a harm analysis. Payne v. State, 11

S.W.3d 231, 232–33 (Tex. Crim. App. 2000).

      Error in the charge, if timely objected to in the trial court, requires reversal

if the error was ―calculated to injure the rights of [the] defendant,‖ which means

no more than that there must be some harm to the accused from the error. Tex.

Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor, 871 S.W.2d at 731–32;

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g);

see also Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (―A claim

of jury-charge error is reviewed using the procedure set out in Almanza.‖). In

other words, a properly preserved error will require reversal as long as the error

is not harmless. Almanza, 686 S.W.2d at 171. In making this determination, ―the

actual degree of harm must be assayed in light of the entire jury charge, the state

of the evidence, including the contested issues and weight of probative evidence,

the argument of counsel and any other relevant information revealed by the

record of the trial as a whole.‖ Id.; see also Ovalle v. State, 13 S.W.3d 774, 786

(Tex. Crim. App. 2000).

B. Involuntary Act

      Farmer argues that he did not intentionally or voluntarily take the Ambien,

which he apparently consumed when he took the pills that his wife had set out for




                                          8
him.5 Therefore, he contends, an involuntary act is a defense in his case in that,

under the penal code, a person ―commits an offense only if he voluntarily

engages in conduct.‖      See Tex. Penal Code Ann. § 6.01(a) (Vernon 2003);

Brown v. State, 290 S.W.3d 247, 250–51 & n.1 (Tex. App.—Fort Worth 2009,

pet. ref‘d); Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.—Austin 2008, pet.

ref‘d); Nelson, 149 S.W.3d at 211–12.

       The court of criminal appeals has described voluntary conduct as follows:

       Voluntary conduct ―focuses upon conduct that is within the control of
       the actor.[‖] . . . Thus, before criminal responsibility may be
       imposed, the actor‘s conduct must ―include[ ] either a voluntary act
       or an omission when the defendant was capable of action.‖ . . . [T]he
       ―voluntary act‖ requirement does not necessarily go to the ultimate
       act (e.g., pulling the trigger), but only that criminal responsibility for
       the harm must ―include an act‖ that is voluntary (e.g., pulling the gun,
       pointing the gun, or cocking the hammer).

              This Court has repeatedly discussed the meaning of
       ―accident‖ and ―voluntary conduct‖ to distinguish the two defensive
       theories. . . .

          ‗[C]onduct [is not] rendered involuntary merely because an
          accused does not intend the result of his conduct.‘ Therefore,
          the issue of the voluntariness of one’s conduct . . . is separate
          from the issue of one’s mental state.

             ...

       ―Voluntariness,‖ within the meaning of Section 6.01(a), refers only to
       one‘s own physical body movements. If those physical movements
       are the nonvolitional result of someone else’s act, are set in motion
       by some independent non-human force, are caused by a physical
       reflex or convulsion, or are the product of unconsciousness,

   5
   We note that taking prescription drugs is not a defense to DWI when the
accused voluntarily takes medication that has effects that are known to him. See
Nelson v. State, 149 S.W.3d 206, 211 (Tex. App.—Fort Worth 2004, no pet.).

                                           9
      hypnosis or some other nonvolitional impetus, that movement is not
      voluntary. The word ―accident,‖ however, is a word of many
      meanings which covers a wide spectrum of possibilities. It generally
      means ―a happening that is not expected, foreseen, or intended.‖ . . .
      [T]he word ―accident‖ has not been used to refer to an ―involuntary
      act‖ under Section 6.01(a).

Rogers v. State, 105 S.W.3d 630, 638–39 (Tex. Crim. App. 2003) (internal

citations omitted) (emphasis added). To assert ―involuntary act‖ as a defense,

the defendant must produce ―evidence of an independent event, such as the

conduct of a third party, that could have precipitated the incident.‖ Rhodes v.

State, 997 S.W.2d 692, 694 (Tex. App.—Texarkana 1999, pet. ref‘d) (citing

Brown, 955 S.W.2d at 280).

      We observe that with regard to the ―accident‖ language in Farmer‘s

requested instruction, ―a request for an instruction on ‗accident‘ is no request at

all . . . . [T]here is no longer any such defensive ‗accident‘ theory which requires

a jury instruction.‖ See Rogers, 105 S.W.3d at 640. Furthermore, involuntary

intoxication is not a defense to DWI. Brown, 290 S.W.3d at 250–51; Nelson, 149

S.W.3d at 211–12; Aliff v. State, 955 S.W.2d 892, 893 (Tex. App.—El Paso 1997,

no pet.). In Brown, another misdemeanor-DWI case, part of the defense‘s theory

was that he had mistakenly taken Ambien instead of his blood pressure

medicine. 290 S.W.3d at 248. We overruled his complaint about the trial court‘s

denial of his involuntary intoxication instruction request because DWI does not

have a culpable mental state.      Id. at 250; see also Tex. Penal Code Ann.




                                        10
§ 49.11(a) (Vernon 2003) (―[P]roof of a culpable mental state is not required for

conviction of an offense under this chapter.‖).

      Because DWI has no required proof of a mental state necessary for a

conviction, it is a conduct-oriented offense. Nelson, 149 S.W.3d at 210. In other

words, ―I didn‘t mean to drive while intoxicated‖ cannot preclude a conviction

because the statute merely requires that the accused be found to be intoxicated

while operating a motor vehicle, without reference to any intent of his part to

become intoxicated.     See Tex. Penal Code Ann. § 49.04 (Vernon 2003),

§ 49.11(a). On the other hand, if a third person causes the accused to become

intoxicated, such as by slipping a ―mickie‖ in his drink or forcing him to take an

intoxicant and get behind the wheel, then the voluntary conduct defense is

available. Cf. Brown, 290 S.W.3d at 248, 251 (holding no involuntary intoxication

when appellant took Ambien instead of his blood pressure medicine when the

Ambien pills were a different color and shape than his blood pressure medicine).

These possible third party actions do not touch on the accused‘s mental state or

intent, but rather on voluntariness. Cf. Nelson, 149 S.W.3d at 208–09, 211–12

(holding no jury instruction required when appellant knowingly and intentionally

took the three different prescription painkillers an hour before driving and knew

their side effects from past usage); Aliff, 955 S.W.2d at 892–93 (holding same

when nothing in the record indicated that appellant unknowingly took his

prescription drugs for his mental illness and back problems or that he took them

without knowledge of their effects).


                                        11
      The facts of this case do not squarely fit into one of the categories we have

discussed—accident, involuntary intoxication, or involuntary act. However, we

hold that it is most closely akin to an involuntary act because the evidence

suggests that although Farmer voluntarily took the pills laid out for him by his

wife, he involuntarily took the Ambien pill because of his wife‘s act. Therefore,

the trial court‘s denial of Farmer‘s request for an instruction about the

voluntariness of his actions constituted some harm, in that it denied the accused

of a defense that, if believed by the jury, could have resulted in his acquittal. See

Brown, 955 S.W.2d at 279; Abdnor, 871 S.W.2d at 731–32; Almanza, 686

S.W.2d at 171. We sustain Farmer‘s sole point.

                  V. Substance of the Requested Instruction

      The State argues that the trial court did not err by denying Farmer‘s

requested instruction because the proposed instruction improperly commented

on the weight of the evidence. The State does not point us to anywhere in the

record to show where the substance of the proposed instruction was considered

and ruled on by the trial court. See Tex. R. App. P. 33.1(a). The record reflects

that although the trial court reflected that the proposed instruction was ―kind of a

comment‖ on the weight of the evidence, the State did not lodge this specific

objection and the parties did not argue the issue before the trial court. Because

the issue of the proposed instruction‘s content was not presented to, considered

by, or ruled on by the trial court and because on remand the parties will have an

opportunity to present and respond to arguments about, and the trial court will


                                         12
consider and expressly rule on, the substance of the jury instruction to be given,

we express no opinion as to the substance of Farmer‘s proposed instruction as

we find the issue unnecessary to resolve Farmer‘s sole issue—whether an

instruction was warranted—and we further conclude that the State‘s request puts

the issue of the instruction‘s substance prematurely before us.

                                 VI. Conclusion

      Having sustained Farmer‘s sole point, we reverse the trial court=s judgment

and remand this case for a new trial.


                                                  BOB MCCOY
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 28, 2011




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