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

           No. 02-17-00353-CR
      ___________________________

    MIGUEL HERNANDEZ, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 3
           Tarrant County, Texas
        Trial Court No. 1379618D


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      A jury convicted Appellant Miguel Hernandez of capital murder. See Tex.

Penal Code Ann. § 19.03(a)(2). Appellant was sentenced to life without parole. See

Tex. Code Crim. Proc. Ann. art. 37.071. In a single point, Appellant asserts that the

trial court erred by including an erroneous definition of “insanity” in the jury charge.

Because we conclude that the error is not reversible, we affirm.

                                  II. BACKGROUND

A. The Murder

      On July 27, 2014, the Fort Worth Police Department (FWPD) received two

phone calls—the first at 2:25 a.m. and the second at 2:26 a.m.—from the residence of

Don Keaton (age 82) and James Bowling (age 56). Because the first call identified a

burglary in progress and the second call was a hang-up indicating distress, several

FWPD officers were dispatched to the residence.

      When they arrived, the officers heard a cry for help, the sound of glass breaking

in the back of the house, and someone jumping the backyard fence. Upon entering

the house, one of the officers discovered Don and James lying on the floor covered in

a black gel-like substance that was later discovered to be drain cleaner. Don had been

badly beaten and his eyes were swollen shut. James was dead and covered in blood.1


      1
        The chief deputy medical examiner determined that James had suffered blunt
force trauma to his head and face and had a broken hyoid bone due to significant

                                           2
      One officer observed a white pickup truck with blood on the driver’s side door

parked in a field behind the house. The officer discovered Appellant inside of the

truck, completely naked except for socks and covered in blood. Appellant had

multiple lacerations on his arms, hands, forehead, and back, and he had a strong

“skunk-type smell.” The officer requested that Appellant step out of the truck and lie

down on the ground, and Appellant complied with the requests. The officer placed

Appellant in handcuffs, at which point Appellant began to act erratically, repeatedly

stating that he was “working for the dark prince.” Whenever a new person arrived at

the scene, Appellant would try to crawl under his truck because he was worried that

people were going to try to kill him.

      Around this time, the Fort Worth Fire Department (FWFD) also arrived at

James and Don’s residence. The FWFD captain testified that when he observed

James and Don lying on the ground he initially thought both men were dead until he

heard Don start talking. The captain observed that both men were covered in

coagulated blood and the black substance.

      Before arriving at the house, the captain had noticed that another engine

company from his fire station had also been dispatched just down the street on a

separate call. The captain soon wondered if the calls were related, so he walked a few

blocks to check on the other engine company.          When the captain arrived, he


force to his neck. The chief deputy medical examiner concluded that James died from
strangulation.

                                            3
witnessed Appellant sitting on the ground handcuffed, naked, and covered in blood.

The captain, who estimated that he had responded to thousands of calls involving

intoxicated individuals, believed that Appellant was “under the influence of

something” because he was wild-eyed and agitated.2

      Appellant was transported to John Peter Smith Hospital (JPS).3 He was tested

for methamphetamines and the results came back negative. The nurse on staff when

Appellant arrived stated at trial that “there was no drug found in his system,” but on

cross-examination, she acknowledged that JPS has a “threshold amount” that causes a

test result to come back as negative if an amount is discovered that is below the

threshold amount.    On redirect examination, the nurse stated that she had no

knowledge of what the threshold amount is for methamphetamine and whether there

was an indication of any methamphetamine in Appellant’s drug test results.

B. The Legal Proceedings

      Appellant was indicted and charged with intentionally causing the death of

James in the course of committing or attempting to commit burglary of a habitation.

      Before trial, Appellant filed a notice of insanity defense. Appellant also filed a

pretrial motion in limine requesting that the trial court instruct the State not to


      2
       On cross-examination, the captain clarified that “when I said [Appellant] was
under the influence of something, I didn’t just think possibly narcotics. I thought
maybe something spiritually was going on with him too.”
      3
       Appellant had been treated at JPS for a methamphetamine overdose
approximately one month earlier.

                                          4
comment on or allude to “[a]ny and all mentions of alcohol use, drugs, drug

paraphernalia, and/or drug use” because Appellant “anticipate[d] that the State

[would] attempt to introduce evidence of instances of alcohol use, drugs, drug

paraphernalia and/or drug use by [Appellant].” In arguing the motion, Appellant’s

trial counsel explained the “intertwined” nature of Appellant’s defense of insanity and

the State’s theory of voluntary intoxication:

      [APPELLANT’S TRIAL COUNSEL]: Judge, and to further amplify
      what the State is presenting, in this case it’s probably going to become
      clear for the Court that their -- their belief of intoxication or relevancy of
      intoxication is going to be intertwined very closely with our presentation
      of -- of insanity which we intend to -- to introduce.

              Ultimately, there’s going to be a question as to whether the conduct was --
      was based upon insanity, true insanity or from the State’s perspective whether
      intoxication played a role. The ultimate question is going to be left with the
      Court, of course. But it’s going to be a theme throughout at least the
      guilt/innocence portion.

[Emphasis added.]

      At trial, Appellant objected under rule of evidence 403 to the introduction of

certain evidence that he was on drugs at the time of the murder because Appellant’s

drug screening at JPS had come back negative for methamphetamines. The trial court

overruled Appellant’s objection.

      A FWPD detective interviewed Appellant approximately ten hours after the

attack. The interview was recorded, and the video was admitted into evidence and

played for the jury. In accordance with the video, the detective testified that he



                                              5
believed Appellant was on drugs when he murdered James because Appellant had

admitted to ingesting methamphetamines 30 to 45 minutes before the attack:

       [APPELLANT’S TRIAL COUNSEL]: And your belief is that he
       ingested some kind of drug, some -- some kind of drug. Do we know
       what kind of drug he ingested?

                [DETECTIVE]: Yeah, he said he ingested methamphetamines.

              [APPELLANT’S TRIAL COUNSEL]:                And he said that he
       finished smoking 25, 30 minutes?

                [DETECTIVE]: He said 30 to 45 minutes prior.

       Appellant’s expert, Dr. Matt Mendel, stated that he had met with Appellant

four times for a total of approximately fourteen hours. Dr. Mendel testified that

“there’s no doubt that [Appellant] was -- was psychotic back at the time that I saw

him in 2015 . . . [and] that he was psychotic at the time of the crime.” In rebuttal, the

State called its own expert, Dr. Randall Price, who testified that Appellant was in a

psychotic state at the time of the offense but that it was caused by voluntary

intoxication.

       At the charge conference, the State requested submission of an instruction that

an insanity defense cannot be supported by voluntary intoxication and Appellant’s

trial counsel objected:

       [PROSECUTOR]: . . . We want -- I think it’s 8.04 related to voluntary
       intoxication and the fact that temporary insanity is not a defense if -- if
       the intoxication was voluntary.

               [APPELLANT’S TRIAL COUNSEL]: And we would object to
       -- to that, Judge.

                                           6
              ....

              THE COURT: . . . I’ll give you a chance maybe tomorrow to
       argue it a little bit more before I make my decision . . . And I’m going to
       go ahead and put in the instruction the State requested as well in both.

              [APPELLANT’S        TRIAL     COUNSEL]:          The intoxication
       discussion?

              THE COURT: Yes. And your objection is noted.

              [APPELLANT’S TRIAL COUNSEL]:                   I’ll make another
       objection tomorrow.

       The next day, Appellant’s trial counsel returned to the objection, addressing it

in greater detail:

       [APPELLANT’S TRIAL COUNSEL]: Well, Judge, that leaves me time
       to talk about intoxication, make my -- make my objection known to the
       intoxication.

              THE COURT: Okay. Go ahead.

              [APPELLANT’S TRIAL COUNSEL]: Judge, as noted by the
       Defense filing a motion in limine regarding any discussion of drugs, in
       addition to 403 objections made by the Defense regarding any drugs or
       drug use --

              THE COURT: I can’t hear. Go ahead.

              [APPELLANT’S TRIAL COUNSEL]: Regarding any drugs or
       drug use, the issue is, of course, as the Court is aware, the presence of a
       negative -- negative drug screen after the offense. And it’s the Defense’s
       position that because of that objected evidence, the State has presented
       no evidence impeaching the actual screen. All of the evidence presented
       by the State . . . , even the statements of my client, all of them are not
       disputing the underlying fact that there is a negative drug screen
       associated by [Appellant] at that time.


                                           7
       The offer -- the evidence offered has only -- has not been
impeachment. There has not been a demonstrative showing by the State
that the test itself, the negative screen itself was not valid. There was no
indication that the machine wasn’t working properly. No evidence at all
other than the -- the -- the -- the questions answered by the prosecutor --
asked by the prosecutor which are not evidence.

       And this suggestion, as -- as I -- as I objected to under 403, the
suggestion by the prosecutor that this -- the jury would have to ignore a
negative drug screen without any supplemental affirmative evidence
either denying or impeaching the validity of that drug screen is not
evidence. And they are not entitled to a charge of intoxication based on
the simple inference of their -- of their question.

       The questionings -- the questions that they presented or the
evidence that they presented, none of it includes any objective evidence
which we can then counteract. All they’ve said was, well, ignore it. And
they’re inviting the jury to ignore evidence on the very issue which we’re
entitled to rely on.

       So, by -- by the Court keeping the intoxication language in, it -- it
-- and in light of my 403 objections throughout the course of the
guilt/innocence portion, it effectively undermines the intoxication
defense without them having to affirmatively prove beyond a reasonable
doubt the -- a portion of the -- of the defense that I’m relying -- relying
upon.

       So we’re in a solid situation where they didn’t have any proof,
they didn’t have any proof to undercut or undermine or discredit the
results that were given. All -- all -- all it was -- was in -- innuendo and
reasons why it could be not true, and that’s not evidence. And I don’t
think they’ve met their burden of -- by beyond a reasonable doubt of
disproving our -- our affirmative Defense.

      ....

      [APPELLANT’S TRIAL COUNSEL]: Just briefly, Your Honor.

       In addition, the -- the State’s toxicologist by inference, by my
questioning, indicated that if someone were a habitual drug user, as the
evidence has borne out to show, that it would be more likely that

                                     8
      somebody would retain more methamphetamine in their system,
      certainly if they took all of the methamphetamine that they could into
      their lungs a short time before the offense.

             The Defense would point the Court to the Routh case in which
      there is a discussion -- I believe it is Court of Appeals -- got a CR
      number, 11-15-0036, that’s the Chris Kyle case. And it’s similar situation
      where the Court found that there has to be some evidence, and in that
      case they actually had someone who was consuming marijuana with the
      individual on trial and convicted at that time. There’s got to be some
      connection other than just the allegation that maybe inherently the
      impartial or the independent drug test is -- is wrong.

             But that’s -- that’s the Defense position, Your Honor. We would
      object to the language of intoxication in that charge.

The court overruled Appellant’s objection.

      The jury returned a guilty verdict for the offense of capital murder as charged

in the indictment. At the sentencing proceeding, the jurors did not answer the special

issue regarding whether Appellant was a continuing threat to society, so the trial court

sentenced Appellant to life without parole.

C. The Sole Point on Appeal

      In his sole point, Appellant contends that the definition of “insanity” in the

abstract portion of the jury charge was erroneous because it improperly limited its

scope to insanity arising from involuntary intoxication.              While Appellant

acknowledges that voluntary intoxication cannot establish insanity as an affirmative

defense, he maintains that the definition is incorrect because insanity is not limited to

instances of involuntary intoxication. According to Appellant, by instructing the

jurors that they could only find Appellant insane if he was involuntarily intoxicated,

                                           9
the court prevented the jury from considering the entire scope of Appellant’s insanity

defense—i.e., he was not intoxicated at all and yet still suffering from a mental disease

or defect such that he did not know that his conduct was wrong.

      The State responds that there is no charge error because involuntary

intoxication as causation is implicit within an insanity defense and because the

allegedly erroneous definition of insanity applied only to the instructions concerning

intoxication.   Moreover, to the extent that the abstract portion of the charge

improperly limited what could constitute insanity, the application potion of the jury

charge placed no such limitation on Appellant’s insanity defense. Thus, in the event

that we conclude the instruction was erroneous, the State argues that Appellant

cannot demonstrate harm.

                                     III. ERROR

A. Applicable Law

      1. Jury-Charge Error

      We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Thus, in

reviewing a jury charge complaint, we first determine whether error occurred; if not,

our analysis ends. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

      2. Insanity and Intoxication

      “Texas law, like that of many American jurisdictions, excuses a defendant from

criminal responsibility if he proves, by a preponderance of the evidence, the

                                           10
affirmative defense of insanity.” Ruffin v. State, 270 S.W.3d 586, 591–92 (Tex. Crim.

App. 2008). Section 8.01 of the penal code allows the affirmative defense of insanity

if “at the time of the conduct 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).

There is a general presumption of sanity, and the defendant bears the burden of

proving his insanity at the time of the conduct charged. Martinez v. State, 867 S.W.2d

30, 33 (Tex. Crim. App. 1993).

       Evidence of intoxication may be relied on to establish insanity, but only a

specific type of intoxication will support that defense. “Voluntary intoxication is not

a defense to crime.” Reyna v. State, 11 S.W.3d 401, 402 (Tex. App.—Houston [1st

Dist.] 2000, pet. ref’d, untimely filed); see also Tex. Penal Code Ann. § 8.04(a); Torres v.

State, 585 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1979); Brown v. State, 290

S.W.3d 247, 250 (Tex. App.—Fort Worth 2009, pet. ref’d). Only intoxication that is

involuntary is a defense to criminal conduct. Torres, 585 S.W.2d at 749.

       Involuntary intoxication is an alternate means to prove insanity, or as one of

our sister courts put it, “the insanity defense also encompasses the defense of insanity due

to involuntary intoxication.” Haley v. State, No. 10-13-00264-CR, 2014 WL 3556629,

at *1 (Tex. App.—Waco July 3, 2014, pet. ref’d) (mem. op., not designated for

publication) (emphasis added). Therefore, “the test used for insanity is . . . applicable

to involuntary intoxication” and requires a showing that “as a result of his intoxication

the accused did not know that his conduct was wrong or was incapable of conforming

                                            11
his conduct to the requirements of the law he allegedly violated.” Torres, 585 S.W.2d

at 749.

B. Application of the Law to the Facts

      The trial court worked to integrate the general principle of insanity and the

subtleties of intoxication into the charge. The relevant portion of the jury charge

reads as follows, with the challenged portion italicized:

      You are instructed that no act done in a state of insanity can be punished
      as an offense. It is an affirmative defense to prosecution of a criminal
      action that, at the time of the conduct charged against a person, as a
      result of severe mental disease or defect, he did not know that his
      conduct was wrong.

            The severe mental disease or defect must have existed at the very
      time or times inquired about, that is, at the very time of the alleged
      commission of the offense.

             The term “mental disease or defect” does not include an
      abnormality manifested only by repeated criminal or otherwise anti-
      social conduct.

            You are instructed that voluntary intoxication does not constitute
      a defense to the commission of a crime. You are further instructed that
      under our law neither voluntary intoxication nor temporary insanity of
      the mind caused by voluntary intoxication shall constitute any defense to
      the commission of a crime.

            By the term “intoxication” as used herein is meant disturbance of
      mental or physical capacity resulting from the introduction of any
      substance into the body.

              By the term “insanity” as used herein is meant that as a result of involuntary
      intoxication the defendant did not know that his conduct was wrong.

            The burden of proof is upon the defendant to prove this
      affirmative defense by a preponderance of the evidence.

                                               12
             By the term “preponderance of the evidence” is meant the greater
       weight and degree of the credible evidence in this case.

[Emphasis added.]

       Here, the challenged definition in the abstract portion of the charge states that

“the term ‘insanity’ as used herein is meant that as a result of involuntary intoxication the

defendant did not know that his conduct was wrong.” [Emphasis added.] Thus,

Appellant plausibly reads the plain language of this definition as erroneously

instructing the jurors that insanity, as used throughout the entire jury charge, can only

arise out of involuntary intoxication. If this interpretation is correct, we agree with

Appellant that the definition is erroneous because the penal code provides no such

restriction that insanity may only arise from involuntary intoxication. See Tex. Penal

Code Ann. § 8.01.

       However, the State sets forth another plausible reading that, given the pattern

throughout the jury charge of first stating a broad legal principle followed by pertinent

definitions, the limited definition of insanity only applies to the two paragraphs of the

jury charge immediately preceding it that address voluntary intoxication. That is, the

erroneous insanity definition is contextual and clarifies what type of intoxication may

establish the defense of insanity.

       But although both readings are plausible, the definition itself states that it is to

be used “herein.” “Herein” is an inherently ambiguous term that could refer to the

two paragraphs immediately preceding it (as the State contends) or the entire charge

                                             13
(as Appellant contends). See Herein, Black’s Law Dictionary (10th ed. 2014) (defining

“herein” as meaning “[i]n this thing (such as a document, section, or paragraph)” and

then stating that the term is “inherently ambiguous”).

      Therefore, because it is unclear whether the erroneous definition of insanity

applies only to the two immediately preceding paragraphs or throughout the entire

charge, we conclude that this portion of the charge is ambiguous and thus in error.

See Riley v. State, 802 S.W.2d 909, 910–11 (Tex. App.—Fort Worth 1991) (op. on

reh’g) (finding error when the court’s charge is ambiguous), aff’d, 830 S.W.2d 584

(Tex. Crim. App. 1992).

                                IV. PRESERVATION

      Finding error in the jury charge is a necessary but not a sufficient condition for

reversal. Before we can begin our harm analysis, we must first decide whether

Appellant’s objection during the charge conference preserved the error. Because

Appellant’s objection did not address or challenge the definition of insanity but only

argued that the court should give no instruction on the issue of intoxication, we

conclude that the error was not preserved, and we analyze the error accordingly under

our unobjected-to standard.

A. Applicable Law Regarding Preservation

      While the case law is clear that we review jury-charge error whether objected to

or not, the “possible consequences of error in the charge are . . . determined by

whether timely objection was made in the trial court.” Bluitt v. State, 137 S.W.3d 51,

                                          14
53 (Tex. Crim. App. 2004). “In order to preserve error relating to the jury charge

there must either be an objection or a requested charge.” Vasquez v. State, 919 S.W.2d

433, 435 (Tex. Crim. App. 1996). “To preserve error with regard to a jury charge,

objections must be sufficiently specific to point out the errors complained of.”

Harkins v. State, 268 S.W.3d 740, 746 (Tex. App.—Fort Worth 2008, pet. ref’d).

“[T]he objection must be specific and clear enough to apprise the trial court of the

nature of the objection—this specificity requirement is to enable the trial court ‘to

know in what respect the defendant regards the charge as defective and to afford him

an opportunity to correct it before reading the charge to the jury.’” Id. at 747 (quoting

Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App. 1985)).

B. Analysis

       As quoted above, Appellant’s trial counsel objected to the State’s request for an

instruction concerning voluntary intoxication. The objection was essentially that the

State was not entitled to such an instruction because it had failed to put on evidence

to support that Appellant was intoxicated on the night of the attack. However,

Appellant has not directed us to (and we have not located) an objection to the

wording of the charge as improperly limiting insanity to a condition induced by

involuntary intoxication, or that Appellant’s trial counsel even objected to the

definition of insanity.

       Therefore, because we conclude that Appellant’s trial counsel’s objection was

not specific enough to alert the trial judge to the complaint Appellant makes on

                                           15
appeal, we analyze the harm caused by the erroneous definition under our review of

unobjected-to error.      See id. (reviewing jury-charge error under standard for

unobjected-to error because the defendant’s objection “never [specifically] apprised

the trial court of her complaint with regard to the article distinction, i.e., the use of ‘a’

rather than ‘the,’ but rather, complained broadly with regard to Paragraph IV in its

entirety and its presence in the charge at all”).

                                        V. HARM

A. Applicable Law Regarding Egregious Harm

       Unpreserved charge error warrants reversal only when the error resulted in

egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza

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

Crim. Proc. Ann. art. 36.19. The appropriate inquiry for egregious harm is fact- and

case-specific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.

State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

       In making an egregious-harm determination, we must consider “the actual

degree of harm . . . 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.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–10

(applying Almanza). Errors that result in egregious harm are those “that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

                                             16
defensive theory, or make a case for conviction clearly and significantly more

persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The

purpose of this review is to illuminate the actual, not just theoretical, harm to the

accused. Almanza, 686 S.W.2d at 174.

          Generally, when the application paragraph correctly instructs the jury, an error

in the abstract instruction is not reversible. Medina v. State, 7 S.W.3d 633, 640 (Tex.

Crim. App. 1999) (op. on reh’g); Bazanes v. State, 310 S.W.3d 32, 39 (Tex. App.—Fort

Worth 2010, pet. ref’d). Reversible error occurs in an abstract instruction only when

the instruction is an incorrect or misleading statement of law that the jury must rely

on to implement the application paragraph’s commands. Plata v. State, 926 S.W.2d

300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d

234 (Tex. Crim. App. 1997); see also Arteaga v. State, 521 S.W.3d 329, 338–40 (Tex.

Crim. App. 2017) (holding that trial court reversibly erred by providing an incorrect

definition of “prohibited from marrying” in sexual assault jury charge); Riley, 830

S.W.2d at 586–87 (holding that the confusing conflict between the abstract and

application paragraphs on the burden of proof concerning insanity was reversible

error).




                                             17
B. Application of the Harm Factors to the Trial Record

      1. Jury Charge as a Whole

      Our review of the jury charge as a whole does not favor a showing of egregious

harm. In addition to the erroneous definition of insanity, the abstract part of the

charge also included an instruction that

      no act done in a state of insanity can be punished as an offense. It is an
      affirmative defense to prosecution of a criminal action that, at the time
      of the conduct charged against the person, as a result of severe mental
      disease or defect, he did not know that his conduct was wrong.

This provided the jury with the proper definition of insanity without limiting its

application to involuntary intoxication. Therefore, the abstract portion of the jury

charge contained both the full definition of insanity and the ambiguous version.

      The application portion of the jury charge also included the correct, full

definition of insanity in language that did not reference any type of intoxication or use

of the word insanity but specifically required the finding of a severe mental defect or

disease—i.e., the very conditions referenced in the correct definition in the abstract

portion of the charge:

      Now, if you believe from the evidence beyond a reasonable doubt that
      on or about the 27th day of July 2014, in Tarrant County, Texas, the
      defendant, Miguel Hernandez, did then and there intentionally cause the
      death of an individual, James Bowling, by strangling him with his hands
      or with his arm, and the said defendant was then and there in the course
      of committing or attempting to commit the offense of burglary of a
      habitation of James Bowling, who was the owner of said habitation as
      alleged in the indictment, but you further believe, by a preponderance of the
      evidence in the case, that at the time he committed the act, if he did, the defendant, as
      a result of a severe mental disease or defect, did not know that his conduct was wrong,

                                                18
      then you will find the defendant “Not Guilty by Reason of Insanity,”
      and so state in your verdict.

[Emphasis added.]

      Therefore, because the abstract part of the charge also contained a correct

definition of insanity and because the application portion of the charge did not

contain or rely upon the ambiguous insanity definition, the jury charge as a whole

does not support a finding of egregious harm. See Plata, 926 S.W.2d at 302.

      2. Arguments of Counsel

      The State’s theory of the case was that Appellant voluntarily got high on

methamphetamines and then murdered James.              The defense contended that

Appellant’s mental state did not result from his consumption of drugs.

      Beginning in voir dire, the State repeatedly apprised the jury that while

involuntary intoxication may cause temporary insanity and be a defense to a crime,

voluntary intoxication will not support an insanity defense. As explained above, the

State is entitled to an instruction—and thus may argue—that voluntary intoxication

cannot be the basis of an insanity defense when an appellant asserts the defense of

insanity and there is evidence, even “slight,” that a mental defect could have been

caused by the defendant’s drug use. See Tex. Penal Code Ann. § 8.04(a); Taylor v. State,

885 S.W.2d 154, 158 (Tex. Crim. App. 1994). Moreover, during voir dire, the State

repeatedly provided the correct definition of insanity without reference to

intoxication.


                                          19
       The prosecutor’s closing argument conformed mostly to the charge’s proper

definition and application of insanity but made a passing reference that arguably

repeated the ambiguity noted in the charge. Initially, the prosecutor provided the

correct definition of insanity and then stated, again correctly, that voluntary

intoxication is not a defense to a crime.

       The last two sentences that we highlight in the quotation below pose the slight

suggestion of the same ambiguity found in the charge. However, these sentences

specifically reference the words “temporary insanity,” and the only place those words

occur is in the portion of the charge dealing with the interrelation of intoxication and

insanity.   Thus, the argument does a better job of limiting the reach of the

questionable instruction than does the charge itself:

       There’s one other issue I want to talk with you about before I sit down.
       And you already know what it is. It’s the law of insanity. And the Court
       tells you in its instruction what insanity means, and you know what it means
       because we talked about it in jury selection. You’ve heard us talk about
       it during the course of this trial. And you know that insanity is when a
       person suffers from a severe mental disease or defect that causes [the
       person] not to know the difference between right or wrong.

              But you also know from the Court’s Charge that voluntary
       intoxication is not a defense to crime. And the Court goes on to tell you that
       in order for someone to be temporarily insane, it can’t be from voluntary -- from
       voluntary intoxication. It has to be from involuntary intoxication.

[Emphasis added.]

       Immediately thereafter in his closing argument, Appellant’s trial counsel

reminded the jury of the requirements for insanity and in so doing appeared to


                                              20
recognize that by that stage in the trial, the jurors should have known the proper

definition of insanity:

       Now let’s back that up a little bit and let’s just think about this. When we
       start talking about insanity, there’s two parts to it. You know that. One, that he
       was suffering from a mental disease, a severe mental disease and, two,
       that he didn’t know right from wrong.

[Emphasis added.]

       Therefore, notwithstanding the one isolated but potentially problematic snippet

of the State’s closing argument, when taken as a whole, the arguments of counsel do

not support a showing of egregious harm because the correct definition of insanity

was used throughout the trial and because the arguments did not compound the

charge’s error but arguably clarified the erroneous definition in the abstract portion of

the charge. See Gelinas, 398 S.W.3d at 710 (concluding counsel’s arguments did not

show egregious harm because “correct jury arguments most likely alerted the jury to

the error and allowed [it] to recognize the mistake and properly apply the law”).

       3. Entirety of Evidence

       Our review of the entirety of the evidence does not support a finding of

egregious harm. The evidence focused not on a distinction between voluntary and

involuntary intoxication but on whether the voluntary ingestion of drugs or psychosis

produced Appellant’s behavior.

       The jurors could have relied upon the testimony of the FWPD detective,

FWFD captain, and Dr. Price to find that Appellant voluntarily ingested


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methamphetamines 30 to 45 minutes prior to murdering James thereby precluding an

insanity defense because Appellant’s mental disease or defect was caused by voluntary

intoxication. See Sakil v. State, 287 S.W.3d 23, 27 (Tex. Crim. App. 2009) (concluding

that although the “evidence did not establish unequivocally that [the appellant] was

intoxicated the day of the assault,” testimony of the appellant’s drug use from his

psychiatrist was still “sufficient evidence from which a juror could conclude that

intoxication somehow excused [the appellant’s] actions”).

        Moreover, the jurors could have believed the testimony of Dr. Price that

Appellant was voluntarily intoxicated and not believed the testimony of Appellant’s

expert, Dr. Mendel, that as a result of severe mental disease or defect, Appellant did

not know that his conduct was wrong at the time of the attack. See Fitts v. State, 982

S.W.2d 175, 186 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (“The jurors are to

determine the appropriate weight to accord expert testimony, and they may reject

such testimony if it fails to comport with the jurors’ concepts of sound logic.”).

        Therefore, the entirety of the evidence does not support a finding of egregious

harm.

        4. Conclusion Regarding Harm

        Appellant claimed the defense of insanity and contended throughout trial that

he was not intoxicated—be it voluntarily or involuntarily—at the time of the offense.

However, in response the State contended throughout trial that Appellant was

voluntarily intoxicated and thus could not prove an insanity defense. The State was

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entitled to put on evidence of voluntary intoxication and have the issue submitted to

the jury. See Taylor, 885 S.W.2d at 158. That is, while Appellant was entitled to raise

insanity as an affirmative defense, the State was also entitled to rebut the defense, and

it did so here through testimony that supported its theory that Appellant was high on

methamphetamines when he committed the offense. The State was also entitled to an

instruction explaining what type of intoxication could support the defense of insanity.

See id.

          Moreover, the erroneous definition is located in the abstract portion of the

charge, and the court of criminal appeals has instructed that “[g]enerally, reversible

error occurs in the giving of an abstract instruction only when the instruction is an

incorrect or misleading statement of law that the jury must understand in order to

implement the commands of the application paragraph.” Crenshaw v. State, 378 S.W.3d

460, 466 (Tex. Crim. App. 2012). And although the definition of insanity in the

abstract portion was ambiguous and thus, erroneous, the application paragraph did

not require that the jurors understand the erroneous definition of insanity in order to

implement the commands of the application paragraph. See id. at 467. That is, the

application paragraph did not rely on the abstract portion’s definition of insanity but

instead included the statutory definition of insanity, instructing the jurors if “you

further believe, by a preponderance of the evidence in this case, that at the time he

committed the act, if he did, [Appellant], as a result of a severe mental disease or

defect, did not know that his conduct was wrong, then you will find [Appellant] ‘Not

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Guilty by Reason of Insanity,’ and so state in your verdict.” Finally, the ambiguity was

not accentuated by the argument of counsel or the evidence.

         Based on the foregoing analysis of the egregious-harm factors, we conclude

that the error in the abstract portion of the jury charge did not cause Appellant

egregious harm and is thus not reversible. Accordingly, we overrule Appellant’s sole

point.

                                    VI. CONCLUSION

         Having overruled Appellant’s sole point, we affirm the trial court’s judgment.

                                                        /s/ Dabney Bassel

                                                        Dabney Bassel
                                                        Justice

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

Delivered: February 7, 2019




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