            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-1620-12



                        KODY WILLIAM FARMER, Appellant

                                              v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SECOND COURT OF APPEALS
                           TARRANT COUNTY

       C OCHRAN, J., filed a concurring opinion in which J OHNSON, J., joined.

                              CONCURRING O P I N I O N

       I concur in the majority’s resolution of this appeal, but I cannot join its reasoning.

Texas, like most states, recognizes an affirmative defense of involuntary intoxication,1 and

it applies even in DWI cases. Appellant offered evidence that he was involuntarily

intoxicated and requested instructions on that defense. I think that the trial judge erred in



       1
        Torres v. State, 585 S.W.2d 746 (Tex. Crim. App. [Panel Op.] 1979); see Lewis Buttles,
Criminal Law–Defenses–Involuntary Intoxication Is a Defense in Texas, 12 ST . MARY ’S L.J. 232
(1980).
                                                       Farmer    Concurring Opinion    Page 2

refusing to include any instruction on that defense. But appellant did not complain about the

failure to give the “involuntary intoxication” charge on appeal. Instead, he complained about

other jury instructions.   I agree that appellant was not entitled to instructions on an

involuntary act, therefore I concur with the majority on its resolution of the case.

                                              I.

       Appellant was charged with driving while intoxicated due to the introduction of one

or more of three prescription medicines–zolpidem (Ambien), tramadol (Ultram), and

carisoprodol (Soma). The evidence at trial showed that at about 8:00 a.m. one Saturday

morning, Randall Cox was driving to a Boy Scout meeting when he saw appellant’s SUV

suddenly looming behind him on the freeway. Mr. Cox could not move out of the way fast

enough to avoid being rear-ended by the speeding SUV.

       After being hit, Mr. Cox pulled over, and waved to appellant to pull over as well.

Appellant took a long time to pull over and stop. Mr. Cox walked up to appellant, who was

“staggering and weaving” as he got out of his car. When Mr. Cox asked him for his

insurance information, appellant gave him a business card instead. When he finally obtained

appellant’s driver’s license, Mr. Cox looked on the back side for medical information

because it seemed that appellant had a problem standing up and looked “impaired.” He was

slurring his words, but he didn’t smell of alcohol. While Mr. Cox was calling 911 to report

the accident and tell the dispatcher that appellant “needed help,” he looked up to see

appellant driving off. The 911 operator asked Mr. Cox if he could follow appellant until the
                                                          Farmer    Concurring Opinion      Page 3

police could find them both.

       It took a few minutes for Mr. Cox to get back into his car and follow appellant, who

had driven off the freeway at the next exit ramp and run into a light post on the service road.

Appellant’s engine was still running and the wheels were still spinning, but his SUV was

“impaled” on the pole which was pushed over at a 45 degree angle. Mr. Cox once again

parked his car and walked up to appellant’s car. Appellant was “not really alert.” He didn’t

seem to know that the OnStar person was trying to talk to him.

       When a police officer arrived, appellant came up and shook the officer’s hand and

then fell over into the officer’s arms. His speech was very slurred, he had a hard time

keeping his eyes open, and he acted “sluggish.” After MedStar personnel checked appellant

at the scene to make sure that he had no serious injuries, the officer transported him to the

hospital where appellant agreed to a blood test. The results of that test showed that appellant

tested positive (at therapeutic levels)2 for both tramadol (Ultram), a painkiller, and zolpidem

(Ambien), a sleeping pill. An emergency-room nurse testified that Ambien induces sleep

within 15 to 30 minutes3 and that Ultram is an opiate painkiller that could cause drowsiness


       2
       A doctor testified that a therapeutic level is one at which the drug would be taken as
commonly prescribed.
       3
          She explained that Ambien also causes amnesia and sleepwalking. She had heard of people
who had driven away from home “not remembering anything” after taking Ambien. A doctor
testified that she knew of several examples of people taking Ambien and then having severe cases
of amnesia. She also remembered a case just like appellant’s:
         The one case I can remember is that there was a woman who had taken some Ambien and
         she had driven off the road and into somebody’s–the side of somebody’s house. She couldn’t
         quite figure out why she had gotten there or how she had gotten there afterwards.
                                                          Farmer     Concurring Opinion      Page 4

as well as give pain relief. When shown both the Ambien and Ultram pills, the nurse agreed

that they are the same shape and same white color; the only difference is that one is slightly

larger than the other.

       Appellant testified that he is thirty-four years old, married, with one ten-year-old

daughter. More than ten years earlier, appellant had been injured at an auto auction by a

Jeep that had gotten loose and, while traveling at about 35-45 m.p.h., run into nineteen

people, including appellant. He had to have back surgery and still suffers from chronic back

pain. He has taken a wide variety of prescription medicine to try to relieve the pain. On

April 15th, appellant went to an urgent care clinic and was prescribed Ambien, Soma,

Celebrex, and Ultram for his pain and to help him sleep. Appellant had never had Ambien

before, but he had been taking Ultram for over seven years.

       On Saturday morning, April 19th, appellant was driving from his home in Aledo to

his job as a sales manager at a Carrollton car dealership. Saturday is his busiest day. He

remembered getting up and stopping at a gas station near his home, but that is all that he

remembered of that day. He did not remember the two accidents,4 talking with Mr. Cox or

police officers, or being taken to the hospital. The first thing he remembered was waking up

in jail. He did not remember taking his medicines Saturday morning, but “obviously” he did;

he is “a creature of habit” and knew that he could not make the hour-long drive to work

without his Ultram and Soma pills. His wife always puts his pills out for him. Appellant said

       4
         Appellant testified that the first he knew of the accidents was when he was getting his car
out of the impound lot two days later and they told him that his car was damaged.
                                                         Farmer     Concurring Opinion        Page 5

that he did not intentionally take an Ambien pill that morning; he had never taken Ambien

before April 15th and would not take one unless he was going to bed immediately afterward.

       Appellant’s wife testified that she did remember putting out appellant’s Ambien and

Ultram pills the night before. She felt responsible because the Ambien and Ultram look so

much alike and she did not separate the Ambien (to be taken later that night) far enough from

the Ultram on the microwave. She saw that the Ambien pill was still on the microwave the

next morning, but she didn’t think to take it away.

       At the charge conference, appellant asked for three different jury instructions, one of

which was on involuntary intoxication.5 The State argued that appellant was not entitled to

such an instruction because appellant admitted that he took the pill and it was an Ambien pill;



       5
           That instruction read as follows:

       You are instructed that involuntary intoxication is an affirmative defense to
       prosecution. A person is involuntarily intoxicated when:
       1.     the accused has exercised no independent judgment or volition in taking the
              intoxicant; and
       2.     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.
       In order to satisfy #1, you are hereby instructed the accused:
       1.     was unaware he had ingested an intoxicating substance;
       2.     ingested an intoxicant by force or duress; or
       3.     took a prescribed medication according to the prescription.

       Therefore, if you believe from the evidence beyond a reasonable doubt that on the
       occasion in question the defendant, DEFENDANT, did drive while intoxicated, as
       alleged in the information, but you further believe from the evidence, or you have a
       reasonable doubt thereof, that the driving was the result of an involuntary
       intoxication of the defendant, then you will acquit the defendant and say by your
       verdict “Not Guilty.”
                                                           Farmer    Concurring Opinion       Page 6

therefore he “voluntarily took the intoxicant. . . . The fact is he took the pill. He has a

responsibility to know what he’s actually ingesting in his system.” The trial judge denied all

three of appellant’s requested instructions, including that of “involuntary intoxication,”

noting that it appeared to be a comment on the evidence when it told the jury “that in order

to satisfy number one, you’re hereby instructed that these things are true.” 6

       The State focused its argument on how the law does not require a DWI defendant to

know that he has taken an intoxicating substance. “And why did the law makers choose to

keep the law the same for whatever circumstance? Because the result is the same. The result

is just as dangerous whether somebody knew or didn’t know what the consequences might

be of taking a certain drug.”

       The defense argued that sometimes the law just doesn’t make sense: “Sometimes

when the legislature makes all of this law and the courts interpret the laws, sometimes

common sense is thrown out the window. . . . Do you think for a second that he took that

[Ambien] intentionally?”

       The jury sent out a note asking, “What does the term ‘introduction’ mean?” The trial

judge told the jury that the term did not have any special meaning, and, shortly thereafter, the


       6
          The trial judge was correct that the instruction, as submitted (see note 5), did assume the
truth of numbers 1, 2, and 3. But that error was easy to fix. The sentence should have read:

       In order to satisfy #1, you are hereby instructed that the accused must prove, by a
       preponderance of the evidence, that he
       1.     was unaware he had ingested an intoxicating substance;
       2.     ingested an intoxicant by force or duress; or
       3.     took a prescribed medication according to the prescription.
                                                          Farmer     Concurring Opinion      Page 7

jury returned a guilty verdict.

       On appeal, appellant argued that the trial judge erred in failing to give the jury his

requested instruction #2 on a voluntary act or his requested instruction #3 on “involuntary

intoxication by prescription medicine.” As the court of appeals repeatedly noted, appellant

did not complain about the trial court’s failure to give the jury his requested instruction #1,

on the affirmative defense of involuntary intoxication.7 In its memorandum opinion on

remand, the court of appeals held that appellant “was entitled to an instruction about the

voluntariness of his actions and that failure to include an instruction constituted some harm”

so it sustained appellant’s sole point of error.8

                                                II.

A.     The Affirmative Defense of Involuntary Intoxication

       Voluntary intoxication is virtually never a defense to crime. The law has proved

unwilling to permit a condition that people, at least historically, consider a crime, a sin, or

at best a personal weakness, to serve as an excuse for criminal conduct.9 Indeed, permitting




       7
        Farmer, No. 02-09-00278-CR, 2012 WL 4937104, at *3 n.4 & *5 n.6 (Tex. App.–Fort
Worth 2012).
       8
           Id.
       9
          See City of Minneapolis v. Altimus, 238 N.W.2d 851, 855 (Minn. 1976) (voluntary
intoxication never a defense at common law); Colbath v. State, 4 Tex. Ct. App. 76, 78-79 (1878)
(voluntary intoxication neither excuses nor justifies criminal conduct; intoxication was defendant’s
“own act and folly” and “his own gross vice and misconduct”).
                                                           Farmer    Concurring Opinion       Page 8

a defense of voluntary intoxication would only increase its prevalence.10 “Drunkenness will

be presumed to be voluntary unless some special circumstance is established to remove it

from that category.” 11

       Involuntary intoxication has always been the one recognized exception to this general

rule. The early common-law doctrine of “involuntary intoxication”12 relieved a person of

criminal responsibility if, because of involuntary intoxication, he was temporarily rendered

legally insane at the time he committed the offense.13 Involuntary intoxication is sometimes

described as “innocent intoxication” because the defendant is without moral fault or

blameworthiness for his condition.14 The law does not criminalize conduct that is entirely


       10
         Carter v. State, 12 Tex. 500, 506 (1854) (“There would be no security for life or property
if men could commit crimes with impunity, provided they would first make themselves drunk
enough to cease to be reasonable beings.”).
       11
            ROLLIN M. PERKINS & RONALD N. BOYCE , CRIMINAL LAW 1001 (3rd edition 1982).
       12
           City of Minneapolis v. Altimus, 238 N.W.2d 851, 855-56 (Minn. 1976) (quoting 1 HALE ,
HISTORY OF THE PLEAS OF THE CROWN 32 (1778) and concluding that “[t]he defense of involuntary
intoxication has long been recognized by the courts in England and the United States); see generally,
Singh, History of the Defense of Drunkenness in English Criminal Law, 49 LQ Rev 528, 533 (1933)
(cited in Phillip E. Hassman, When Intoxication Deemed Involuntary So As To Constitute a Defense
to Criminal Charge, 73 A.L.R.3d 195 (1976 & 2013 Supp.)).
       13
          See PERKINS & BOYCE, supra note 11 at 1001; 1 WAYNE R. LA FAVE AND AUSTIN W.
SCOTT , JR., SUBSTANTIVE CRIMINAL LAW 558-59 (1986).
       14
         PERKINS & BOYCE , supra note 11 at 1001; see State v. Brown, 16 P. 259, 259-60 (Kan.
1888) (acknowledging “innocent” intoxication defense to public intoxication and DWI offenses).
As the Kansas Supreme Court explained in Brown:
       But are idiots, insane persons, children under seven years of age, babes, and persons
       who have been made drunk by force or fraud, and carried into a public place, to be
       punished under the statute? And if not, why not? And, if these are not to be punished,
       then no sufficient reason can be given for punishing those who have become drunk
       through unavoidable accident, or through an honest mistake.
                                                           Farmer    Concurring Opinion       Page 9

innocent and could not be prevented or deterred.15

       Texas courts recognize that involuntary intoxication is an affirmative defense when:

       •         “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[.]” 16

       This Court long ago defined the test for involuntariness as the “absence of an exercise




Id. at 260. The court noted that the legislature could hold babes, “idiots,” the insane, and the
involuntarily intoxicated criminally liable, “[b]ut we should never suppose that the legislature
intended to punish the innocent, unless particular words are used that will bear no other
construction.” Id. The court then quoted Bishop’s treatise on the criminal law to the same effect:
        “To punish a man who has acted from a pure mind, in accordance with the best lights
        he possessed, because, misled while he was cautious, he honestly supposed the facts
        to be the reverse of what they were, would restrain neither him nor any other man
        from doing a wrong in the future; it could inflict on him a grievous injustice, would
        shock the moral sense of the community, would harden men’s hearts, and promote
        vice instead of virtue.”
Id. at 261 (quoting 1 BISHOP , CRIMINAL LAW § 301).
       15
            See id.
       16
           Mendenhall v. State, 15 S.W.3d 560, 565 (Tex. App.– Waco 2000), aff’d. 77 S.W.3d 815
(Tex. Crim. App. 2002) (citing Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.]
1979) which had cited City of Minneapolis v. Altimus, 238 N.W.2d 851, 856-57 (Minn. 1976)); see
also Aliff v. State, 955 S.W.2d 891, 893 (Tex. App.—El Paso 1997, no pet.); Juhasz v. State, 827
S.W.2d 397, 406 (Tex. App.—Corpus Christi 1992, pet. ref’d). The court of appeals in Mendenhall
stated that the second part of the test was that the defendant “did not know that his conduct was
wrong or was incapable of conforming his conduct to the requirements of the law he allegedly
violated.” 77 S.W.3d at 817. On discretionary review, we held that when the insanity statute, section
8.01 of the Penal Code, was amended in 1983, it eliminated the “incapable of conforming his
conduct” aspect of the insanity law. Thus, to establish an insanity defense or the related defense of
“involuntary intoxication,” a defendant must prove that he “did not know that his conduct was
wrong.” Id. See generally Lewis Buttles, Criminal Law–Defenses—Involuntary Intoxication is a
Defense in Texas, 12 ST . MARY ’S L.J. 232 (1980).
                                                           Farmer     Concurring Opinion       Page 10

of independent judgment and volition on the part of the accused in taking the intoxicant.” 17

This Court has never explained precisely what it meant by that definition, but American

courts have generally held that a person is involuntarily intoxicated when he has become

intoxicated through one of four ways: (1) the fault of another, (2) by his own accident,

inadvertence, or mistake, (3) pathological intoxication based on a physiological or

psychological condition beyond his control, or (4) unexpected intoxication caused by a

medically prescribed drug.18

       The first mode, intoxication caused by the fault of another, was the earliest common-

law “involuntary intoxication” defense.19 Today, courts uniformly recognize that intoxication

caused by another’s force, duress, or fraud, without any fault on the part of the accused, is

involuntary.20      Texas courts recognize this fraud or coercion prong of involuntary


       17
           Hanks v. State, 542 S.W.2d 413, 416 (Tex. Crim. App. 1976). In Hanks, this Court held
that the defendant could not establish involuntary intoxication when he suspected that his companion
had put a drug in his drink, questioned her about putting something in it, but drank it anyway. Id.
        18
             Altimus, 238 N.W.2d at 856.
       19
         See Pearson’s Case, 168 Eng. Rep. 1108, 1108 (1835) (intoxication was involuntary if “by
stratagem, or the fraud of another”).
       20
           See e.g., Burrows v. State, 297 P. 1029, 1035 (Ariz. 1931) (approving trial judge’s
instruction that stated that involuntary intoxication would be a complete defense if defendant was
compelled to drink against his will and “his reason was destroyed” so “that he did not understand
and appreciate the consequences of his act”); People v. Penman, 110 N.E. 894, 900 (Ill. 1915)
(reversible error to refuse jury instruction on “involuntary intoxication” when defendant testified that
he took tablets that a man told him were breath perfumers when he gave them to the defendant but
that were, in fact, cocaine tablets); People v. Scott, 146 Cal.App.3d 823, 825-31 (Cal. Ct. App. 1983)
(defendant was improperly convicted of attempted unlawful taking of a vehicle when evidence
showed that someone had “spiked” punch with hallucinogenic substance at a family reunion and his
bizarre delusions and actions were caused by involuntary intoxication); Commonwealth v. McAlister,
                                                         Farmer     Concurring Opinion      Page 11

intoxication.21 For example, in Torres v. State, some evidence indicated that the male robber

had given his female cohort a drink containing water, Alka-Seltzer, and some Thorazine

tablets. The female robber appeared drugged at the time she assisted her male companion

in robbing the homeowner victim.22 We reversed the female’s conviction because the trial

judge refused to give an instruction on involuntary intoxication as an affirmative defense.23

       Under the second prong, intoxication is involuntary if the defendant voluntarily took

the substance but was unaware of its intoxicating nature.24 Typically this prong requires that

the defendant’s mistake reaches some threshold of reasonableness before the defense may




313 N.E.2d 113, 119 (Mass. 1974) (trial judge did not err in giving instruction of involuntary
intoxication when defense evidence suggested defendant’s coffee was spiked with drug that
produced a reaction consistent with LSD); compare United States v. Bindley, 157 F.3d 1235, 1241-
42 (10th Cir. 1998) (defendant not entitled to “involuntary intoxication” instruction when he
knowingly smoked marijuana cigarette that he claimed must have been laced with another, more
powerful, drug because he voluntarily smoked marijuana and should have known that marijuana
cigarettes often come with other substances added).
       21
         Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1979); see also Buttles,
supra note 1, at 236 (“Taking an intoxicant due to the fraud or deception of another person has
invariably been considered involuntary”).
       22
            Torres, 585 S.W.2d at 748.
       23
            Id.
       24
           See Solomon v. State, 227 P.3d 461, 467 (Alaska Ct. App. 2010) (recognizing a defense
of “unwitting” involuntary intoxication, available only to defendants who make a reasonable, non-
negligent mistake concerning the intoxicating nature of the beverage or substance ingested); see
generally PERKINS & BOYCE , supra, note 11 at 1002 (noting that what prevents the intoxication from
being voluntary in the fraud cases “is not the trickery of the other person but the innocent mistake
of fact by the one made drunk, and an actual ignorance of the intoxicating character of the liquor or
drug has the same effect whether the mistake is induced by the artifice of another or not.”).
                                                          Farmer     Concurring Opinion      Page 12

be asserted at trial.25 Texas courts have recognized this “unwitting” prong of involuntary

intoxication.26

       Under the third prong, “pathological intoxication” may occur when a defendant

unknowingly suffers from a physiological or psychological condition that renders him

abnormally susceptible to a legal intoxicant. For example, a person who takes a first sip of

whiskey and has a severe allergic reaction to the alcohol that includes amnesia or other

mental derangement would qualify.27 No Texas courts have acknowledged this form of an

involuntary-intoxication defense, and most other state courts are reticent to do so.28


       25
          See id.; Altimus, 238 N.W.2d at 856 (“innocent mistake”); see generally, MODEL PENAL
CODE § 2.08(5)(b) (voluntary or “self-induced intoxication” means “intoxication caused by
substances that the actor knowingly introduces into his body, the tendency of which to cause
intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or
under such circumstances as would afford a defense to a charge of crime[.]”). Thus, “involuntary”
intoxication may occur when the actor knowingly introduces a substance into his body “the tendency
of which he does not know nor reasonably should know.”
       26
          See Torres, 585 S.W.2d at 748. Although there was evidence in Torres that the co-
defendant had “spiked” the female defendant’s drink, this Court did not rely on the “force, fraud, or
coercion” prong of involuntary intoxication. Instead we relied solely on the fact that the defendant
had no knowledge of the intoxicating nature of the substance that she voluntarily drank and thus she
exercised no independent judgment in taking the intoxicant. Id. See also Mendenhall, 15 S.W.3d
at 565 (to satisfy first element of involuntary intoxication defense, defendant must prove he was
unaware of ingesting intoxicant, ingested intoxicant by force or duress, or took a prescribed
medication according to prescription).
       27
           See MODEL PENAL CODE § 2.08(4), (5)(c) (defining pathological intoxication as
“intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does
not know he is susceptible.”).
       28
           See, e.g. Kane v. United States, 399 F.2d 730, 736-37 (9th Cir. 1968) (pathological
intoxication not recognized); Martinez v. People, 235 P.2d 810, 815 (Colo. 1951) (allowing defense
only if pled as insanity); Thomas v. State, 125 S.E.2d 679, 682 (Ga. Ct. App. 1962) (decreased
tolerance to alcohol does not decrease responsibility for criminal acts); but see Altimus, 238 N.W.2d
at 858 (unusual and unexpected reaction to drugs can be a defense).
                                                           Farmer     Concurring Opinion       Page 13

        Fourth and finally, courts have found the defense of involuntary intoxication

applicable when, at the time of the offense, a defendant was voluntarily taking prescription

medicine without any awareness that it might have an intoxicating effect.29 Texas courts

have addressed this fourth prong and stated that “[i]ntoxication by prescription medication

occurs only ‘if the individual had no knowledge of possible intoxicating side effects of the

drug, since independent judgment is exercised in taking the drug as medicine, not as an

intoxicant.’” 30

        The treatises and cases uniformly hold that proof of involuntary intoxication is not,

by itself, sufficient to raise the affirmative defense. The defendant must also offer evidence




        29
          See People v. Hari, 843 N.E.2d 349, 359-360 (Ill. 2006) (“We find that the drugged
condition alleged here—an unexpected adverse side effect of a prescription drug that was unwarned
by the prescribing doctor, the [Physician’s Desk Reference] or the package insert—is ‘involuntarily
produced’ within the plain meaning of the involuntary intoxication affirmative defense statute.);
Commonwealth v. Darch, 767 N.E.2d 1096, 1099-1100 (Mass. Ct. App. 2002) (testimony that
defendant may have been misprescribed medicine that led to her psychic and suicidal condition
raised the issue of involuntary intoxication); People v. Caulley, 494 N.W.2d 853, 858 (Mich. Ct.
App. 1992); see also 1 LA FAVE & SCOTT , supra note 13, § 4.10(f), at 560 (“Yet another instance of
involuntary intoxication is when the substance was taken pursuant to medical advice.”). Some courts
apply this defense even when the defendant is aware of the potential side effects if the medication
was taken in the prescribed dosage. See State v. Gardner, 601 N.W.2d 670, 675 (Wis. Ct. App.
1999) (declining to limit “involuntary intoxication” defense to only those occasions in which the
defendant had no knowledge of the intoxicating effect of the medication; “[e]ven if forewarned of
the intoxicating effect of a prescription drug, a person should have recourse to the defense if the drug
renders him or her unable to distinguish between right and wrong. When faced with a medical
condition requiring drug treatment, the patient hardly has a choice but to follow the doctor’s orders.
Intoxication resulting from such compliance with a physician’s advice should not be deemed
voluntary just because the patient is aware of potential adverse side effects.”); Brancaccio v. State,
698 So.2d 597, 598-600 (Fla. Dist. Ct. App. 1997).
        30
         Mendenhall v. State, 15 S.W.3d 560, 565 (Tex. App.– Waco 2000), aff’d, 77 S.W.3d 815
(Tex. Crim. App. 2002).
                                                            Farmer      Concurring Opinion       Page 14

that the intoxication has so affected the capacity of his mind and so deranged his rational

thinking at the moment that he is unable “to know what he is doing and that it is wrong.” 31

B.      The “Involuntary Intoxication” Defense Applies to DWI.

        The involuntary intoxication defense may be applicable in a driving while intoxicated

prosecution. For example, in Commonwealth v. Wallace,32 the evidence showed that the

defendant took a Librium pill as prescribed and crashed his car. He was charged with DWI.33

At trial, the judge prevented the defendant from offering evidence that he had no knowledge

of the effects of Librium and that he had not received warnings about using it before

driving.34 The Massachusetts appeals court held that the law should recognize a defense of

unwitting intoxication, so that “perfectly innocent and well-intentioned[,] careful persons”

would not be subjected to criminal penalties “under circumstances which . . . would not

subject [them] to a liability for damages in a civil proceeding.”35 After all, a person cannot




        31
           PERKINS & BOYCE , supra note 11 at 1005 (citing State v, Alie, 96 S.E. 1011, 1014 (W. Va.
1918) (“Since involuntary intoxication acts to excuse the criminality of the act, it must rise to the
level of insanity, which in this jurisdiction is determined by the M’Naghten test.”); People v. Cruz,
83 Cal.App.3d 308, 330 (1978) (“Unconsciousness due to involuntary intoxication is recognized as
a complete defense to a criminal charge.”)); see Mendenhall, 77 S.W.3d at 818 (under the insanity
statute, section 8.01, “[i]t is now an affirmative defense to prosecution that, at the time of the alleged
offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did
not know that his conduct was wrong.”).
        32
             439 N.E.2d 848 (Mass. Ct. App. 1982).
        33
             Id. at 849.
        34
             Id.
        35
             Id. at 851.
                                                        Farmer    Concurring Opinion     Page 15

be civilly liable for causing a car accident if he did not act negligently. Therefore, the trial

judge erred in preventing the defendant from introducing evidence that he had no advance

knowledge or warning that the medicine was an intoxicant.36 But the Massachusetts court

added an important caveat:

       We do not imply that a jury could not in some instances find that a defendant
       had information sufficient to place on him a duty of inquiring of his doctor as
       to the possible effects of a prescription drug. In such circumstances, a
       conviction [for DWI] would be proper if it is found that the defendant was
       negligent in not asking, and hence not knowing, of such possible effects on his
       driving.37

In other words, the Massachusetts court restricted the defense of unwitting involuntary

intoxication to those defendants who acted reasonably—non-negligently—concerning the

intoxicating nature of the substance they ingested.

       Other courts have also held that involuntary intoxication is a defense to DWI. 38

Indeed, one of the seminal cases discussed by professors Perkins and Boyce is a 1937 New



       36
            Id. at 852-53.
       37
            Id. at 853 n.15.
       38
          See Solomon v. State, 227 P.3d 461, 467 (Alaska Ct. App. 2010) (recognizing defense to
DWI of unwitting intoxication but making it available “only to defendants who make a reasonable,
non-negligent mistake concerning the intoxicating nature of the beverage or substance that they
ingested.”); Commonwealth v. Smith, 831 A.2d 636, 639-41 (Pa. Super. App. 2003) (recognizing
“involuntary intoxication” defense to DWI but rejecting its application in case in which defendant
took prescribed medication and then voluntarily drank a “moderate” amount of alcohol without
regard to the effects of the combination of alcohol and medication); People v. Chaffey, 25
Cal.App.4th 852, 853-54 (Cal. Ct. App. 1994) (recognizing defense of unwitting intoxication to DWI
but holding that jury could reasonably reject that defense when evidence showed defendant took an
overdose of Xanax in an attempt to commit suicide and then, in an unconscious state, began driving
her car).
                                                         Farmer     Concurring Opinion      Page 16

York case holding that the DWI defendant was entitled to an acquittal when the undisputed

evidence showed that he had “inadvertently” overdosed on his doctor-prescribed medicine.39

However, an important limitation on the “involuntary intoxication” defense in DWI cases is

that if the defendant, despite his intoxication, was or became aware that he was driving while

intoxicated, he cannot claim the defense if he continues to drive. As Professors Perkins and

Boyce explain, if the defendant

       was still sufficiently in possession of his faculties to know what he was doing,
       and to understand the character of his acts, and with such knowledge and
       understanding should voluntarily go into a public place or drive a motor
       vehicle on a public highway, the involuntariness of the intoxication would not
       excuse him because the prohibited act itself was done voluntarily.40

       We have never discussed the applicability of the affirmative defense of involuntary

intoxication to DWI prosecutions, although numerous Texas courts of appeals decisions have

held that this defense does not apply to DWI cases.41              Most of those decisions are

unpublished, but they all rely on Aliff v. State.42 In that DWI case, the El Paso Court of

Appeals held that the defendant failed to offer any evidence that he took his prescription



       39
        PERKINS & BOYCE , supra note 11 at 999 (discussing People v. Koch, 294 N.Y.S. 987 (N.Y.
App. Div. 1937)).
       40
         Id. at 999 (citing dictum in State v. Brown, 16 P. 259, 262 (Kan. 1888), which had held that
involuntary intoxication is a defense to public drunkenness).
       41
          See, e.g., Brown v. State, 290 S.W.3d 247, 250 (Tex. App.–Fort Worth 2009, pet. ref’d);
Otto v. State, 141 S.W.3d 238, 241 (Tex. App.–San Antonio 2004) (because DWI requires no
culpable mental state “defense of involuntary intoxication is not relevant”), rev’d on other grounds,
273 S.W.3d 165 (Tex. Crim. App. 2008).
       42
            955 S.W.2d 891, 893 (Tex. App.–El Paso 1997, no pet.).
                                                           Farmer     Concurring Opinion       Page 17

medicines for mental illness and back problems without knowledge of their intoxicating

effect.43 Therefore, he was not entitled to any instruction on involuntary intoxication.44 The

court then cited to Torres for the proposition that “involuntary intoxication is a defense to

criminal culpability.”45 From that sentence, the El Paso court reasoned that, because proof

of a culpable mental state is not required in prosecutions for intoxication offenses, including

driving while intoxicated, the defense did not apply to DWI.46 But, in Torres, we said that

involuntary intoxication is a defense to “criminal culpability” in the sense of “criminal

responsibility,” not a culpable mental state.47 Involuntary intoxication is a “confession and

avoidance” defense and excuses criminal conduct just as insanity, duress, and entrapment

excuse criminal conduct.48       There is nothing in the common law, our law, or the laws of


        43
             Id.
        44
             Id.
        45
             Id.
        46
             Id.
       47
          Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1979) (stating that
voluntary intoxication is no defense to “criminal responsibility” and no defense to “the commission
of crime,” but involuntary intoxication that rises to the level of insanity under section 8.01 “relieves
a person of criminal culpability” and provides the proper “level of mental dysfunction necessary to
relieve a defendant from the criminal consequences of his acts.”).
       48
           Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (defenses that are subject to
the doctrine of confession and avoidance do not negate any element of the offense; they excuse what
would otherwise amount to criminal conduct); see, e.g., Graham v. State, 566 S.W.2d 941, 948 (Tex.
Crim. App. 1978) (“The purpose of the insanity defense issue is to determine whether the accused
should be held responsible for the crime, or whether his mental condition will excuse holding him
responsible.”); Rodriguez v. State, 368 S.W.3d 821, 824 (Tex. App.–Houston [14th Dist.] 2012, no
pet.) (affirmative defense of duress “‘by definition, does not negate any element of the offense,
including culpable intent; it only excuses what would otherwise constitute criminal conduct.’”);
                                                       Farmer    Concurring Opinion      Page 18

other states that suggest that the affirmative defense of involuntary intoxication does not or

should not apply to DWI prosecutions. To punish a person who has acted innocently, without

negligence, and while taking all reasonable precautions “would restrain neither him nor any

other man from doing a wrong in the future; it could inflict on him a grievous injustice,

would shock the moral sense of the community, would harden men’s hearts, and promote

vice instead of virtue.”49 It also promotes disrespect for the law.

       For these reasons, I conclude that Texas does permit the affirmative defense of

“involuntary intoxication” in DWI cases. Because appellant offered some evidence of both

prongs of the “involuntary intoxication” defense and his first requested jury instruction

raised that issue, even if it was not entirely correct, I think that the trial judge erred in

refusing any jury instruction on involuntary intoxication. But, because appellant did not raise

any issue concerning that particular jury instruction on appeal, he has forfeited that claim

now. I therefore agree with the majority’s disposition of this case because appellant was not

entitled to a jury instruction on a voluntary act under Section 6.01(a) of the Penal Code.

Filed: October 9, 2013
Publish




Zamora v. State, 508 S.W.2d 819, 822 (Tex. Crim. App. 1974) (the defense of entrapment
necessarily assumes the act charged was committed; defendant’s denial of knowledge that marijuana
was in his car was a denial of the offense and did not entitle him to defense of entrapment).
       49
          1 JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF CRIMINAL PROCEDURE § 301
(2d ed. 1872).
