                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00409-CR


JOSHUA LOGAN                                                        APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION 1

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                                   Introduction

      Appellant Joshua Logan appeals the life sentence that the jury assessed

and the trial court imposed after he pled guilty to murder. See Tex. Penal Code

Ann. § 19.02 (West 2011). In a single issue, he claims that the trial court erred

by not sua sponte instructing the jury that it could consider temporary insanity

caused by intoxication as a mitigating factor in assessing punishment. We affirm.
      1
       See Tex. R. App. P. 47.4.
                         Facts and Procedural History

      Appellant crept up behind Terry Baird in a bar one night and slit his throat.

Baird died on the floor. Bar patrons subdued Appellant as he tried to flee. After

police arrived and took Appellant into custody, he explained, “I was frustrated

and irritated with my life and my wrongdoings, and I took it out on him.”

      Appellant was charged with and pled guilty to murder and elected for a jury

to assess his punishment. At his trial, witnesses testified that although they had

seen him drinking on the night of the murder, Appellant did not appear visibly

intoxicated, had not created any other public disturbances, and had not given

anyone reason to believe something was wrong. Jenna Williams, a bartender at

a pub in which Appellant had been drinking earlier that evening, testified that she

had a “normal conversation” with him before he left and that Appellant “said

sometimes his uncle told him not to write checks his ass can’t cash and he thinks

he’s going to do that.” At the time, she took that to mean Appellant “was going to

do something that he shouldn’t do.”

      Forensic psychologist Dr. Antoinette McGarrahan testified that Appellant

suffered from a substance-induced psychosis at the time of the murder, which

she explained meant that he had lost touch with reality as a result of substance

abuse and an underlying psychotic condition. She also testified that, because of

his psychosis, Appellant was under the delusion that Baird was somehow




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orchestrating a conspiracy against him and that he either needed to kill him or be

killed. 2

        Appellant presented evidence that he has a long history of abusing alcohol

and amphetamines and that beginning in 2004 had been hospitalized several

times for psychotic episodes.       Dr. McGarrahan testified that the delusions

Appellant claimed he had suffered on the night of the murder were consistent

with a history of his substance-induced psychosis manifesting itself as paranoid

delusions that others were out to kill him.

        Dr. John Roache, professor of psychiatry at the University of Texas Health

Science Center in San Antonio, explained that Appellant’s psychosis could

manifest itself in the form of anxiety and paranoia, but she did not expressly link

Appellant’s symptoms to any inability to distinguish right from wrong. Moreover,

no defense expert testified that psychosis caused Appellant not to know that

killing Baird was wrong.

        After both parties had rested and closed at the end of the punishment

phase, the trial court judge asked if there were any objections to the jury charge,

to which Appellant’s counsel replied, “I have no objections to the charge as it

currently exists.” The charge did not contain an instruction on temporary insanity

caused by intoxication.     The jury found Appellant guilty and assessed his


        2
       According to statements Appellant made to police, Appellant was under
the delusion that Baird had threatened to “gut [him] like a fish,” and he thought
Baird was reaching for a weapon.


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punishment at life in prison in addition to the maximum fine of ten thousand

dollars. The trial court sentenced Appellant accordingly. Now Appellant faults

the trial court for omitting from the jury charge a mitigation instruction that he did

not request.

                               Standard of Review

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

See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994).           First, the reviewing court must

determine whether error actually exists in the charge. Abdnor, 871 S.W.2d at

731–32. Only if error exists in the charge must the court take the next step and

determine whether the error caused sufficient harm to warrant reversing the

judgment. Id. at 731–32.

                                      No Error

      Appellant’s claim falls on the first step.      The trial judge is “ultimately

responsible for the accuracy of the jury charge and accompanying instructions.”

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). Code of criminal

procedure article 36.14 states that “the judge shall, before the argument begins,

deliver to the jury, except in pleas of guilty, where a jury has been waived, a

written charge distinctly setting forth the law applicable to the case.” Tex. Code

Crim. Proc. Ann. art. 36.14. The trial judge has the duty to instruct the jury on the

law applicable to the case even if defense counsel fails to object to inclusions or

exclusions in the charge. Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App.


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2011). But article 36.14 imposes no duty on a trial judge to instruct the jury sua

sponte on unrequested defensive issues because an unrequested defensive

issue is not the law “applicable to the case.” Vega v. State, 394 S.W.3d 514, 519

(Tex. Crim. App. 2013); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.

1998).

      Temporary insanity caused by intoxication is clearly a defensive issue. In

Williams v. State, the court of criminal appeals addressed whether the capital

murder mitigation special issue is a “defensive issue.” 273 S.W.3d 200, 222

(Tex. Crim. App. 2008). In holding that it is, the court compared the mitigation

special issue “with a number of punishment mitigating factors that are clearly

defensive issues, including temporary insanity caused by intoxication.”        Id.

(emphasis added).

      Because Appellant did not request an instruction in the charge that the jury

could consider the mitigating effect of temporary insanity caused by intoxication,

and because the trial court has no duty to give an instruction on defensive issues

when those instructions are not requested, we overrule Appellant’s sole issue.

See Vega, 394 S.W.3d at 519; Posey, 966 S.W.2d at 61; Swaim v. State, 306

S.W.3d 323, 325 (Tex. App.––Fort Worth 2009, pet. ref’d) (plurality holding trial

court not required to instruct jury sua sponte on sudden passion during

punishment phase of murder trial); Wilson v. State, No. 08-11-00042-CR, 2013

WL 461060, at *8 (Tex. App.––El Paso Feb. 6, 2013, pet. ref’d) (not designated

for publication) (citing Swaim with approval); Teague v. State, 03-10-00434-CR,


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2012 WL 512661, at *6 (Tex. App.––Austin Feb. 16, 2012, pet ref’d) (mem. op.,

not designated for publication) (noting that the “court’s reasoning in Swaim is

consistent with the court of criminal appeals’s guidance in Posey”).

                                        Conclusion

         Having overruled Appellant’s sole issue, we affirm the judgment of the trial

court.



                                                     ANNE GARDNER
                                                     JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

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

DELIVERED: July 11, 2013




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