                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-16-00046-CR

LINDA CAROL WILCHER AKA LINDA CAROL SOUTH,
                                   Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                       From the County Court at Law No 1
                           McLennan County, Texas
                         Trial Court No. 2015-0567-CR1


                           MEMORANDUM OPINION


       In two issues, appellant, Linda Wilcher a/k/a Linda South, challenges her

conviction for driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (West

Supp. 2016). Specifically, appellant contends that: (1) there is insufficient evidence to

support her conviction; and (2) the trial court erred in failing to submit an instruction on

voluntariness in the charge. We affirm.
                              I.      SUFFICIENCY OF THE EVIDENCE

        In her first issue, appellant contends that the evidence is legally insufficient to

support her conviction because the State presented no evidence that she voluntarily

drove while intoxicated. We disagree.

A.      Standard of Review

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
        319. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are
Wilcher v. State                                                                              Page 2
treated equally:     “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.      Discussion

        Section 49.04(a) of the Penal Code provides that: “[a] person commits an offense

if the person is intoxicated while operating a motor vehicle in a public place.” TEX. PENAL

CODE ANN. § 49.04(a). A person is intoxicated if she has a blood-alcohol concentration of

0.08 or higher or if she does not have the normal use of her mental or physical faculties.

Id. § 49.01(2) (West 2011). In cases not involving alcohol, such as this case, the latter

standard is applicable. See id.; see also Farmer v. State, 411 S.W.3d 901, 905 (Tex. Crim.


Wilcher v. State                                                                         Page 3
App. 2013). “The offense of driving while intoxicated is a strict liability crime meaning

that it does not require a specific mental state (e.g., intentionally, knowingly, or recklessly

intending to operate a motor vehicle while intoxicated), only a person on a public

roadway voluntarily operating a motor vehicle while intoxicated.” Farmer, 411 S.W.3d at

905 (citing Owen v. State, 525 S.W.2d 164, 164-65 (Tex. Crim. App. 1975); Ex parte Ross, 522

S.W.2d 214, 217-18 (Tex. Crim. App. 1975), overruled on other grounds by Ex parte McCain,

67 S.W.3d 204 (Tex. Crim. App. 2002)).

        Nevertheless, in Farmer, the Court of Criminal Appeals noted:

        Section 6.01(a) of the Texas Penal Code places a restriction on offenses listed
        in the Penal Code. See TEX. PENAL CODE [ANN.] § 6.01(a) [West (2011)]. In
        relevant part, it states that “a person commits an offense only if he
        voluntarily engages in conduct, including and act” or “an omission.” Id.
        Thus, to be guilty of driving while intoxicated, the accused must meet the
        requirements of the driving-while-intoxicated statute and have voluntarily
        engaged in an act or omission. See TEX. PENAL CODE [ANN.] §§ 6.01(a),
        49.04(a). . . .

        We have also stated that voluntariness, as described by Section 6.01(a),
        “refers only to one’s own physical body movements[,]” and that a
        movement is considered involuntary only if that movement is “the
        nonvolitional result of someone else’s act, [was] set in motion by some
        independent non-human force, [was] created by a physical reflex or
        convulsion, or [was] the product of unconsciousness, hypnosis or other
        nonvolitional impetus . . . .” [Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim.
        App. 2003)] Thus, a voluntary act that comprised a portion of the
        commission of the offense is sufficient to satisfy the requirement of Section
        6.01(a), even if that voluntary act was accidental or the consequences of that
        act were unintended.

Id. at 905-06.



Wilcher v. State                                                                           Page 4
        On September 8, 2013, Crystal Davidson noticed “there was a car that had pulled

out in front of me. And they were swerving on both sides of the road, kind of weaving

back and forth and speeding up and slowing down” while driving on Losak Road in

Lorena, Texas. Davidson followed the car, which was later identified as appellant’s, for

ten to fifteen minutes. Davidson testified that she also saw the car run “a stop sign or

almost hit a car.” At this point, Davidson called 911.

        Officer Jeffrey Foley, formerly with the Hewitt Police Department, responded to

the scene. When describing the video of the incident from the in-car dash camera, Officer

Foley noted the following:

        At that point, I had seen the car. I was traveling to get to the car. There was
        some distance between us. When you start seeing vehicles moving out of
        my way, that’s when I activated the emergency lights on my car. And I
        catch up to the driver. She was driving slower than the posted speed
        limit—well below; probably from my estimate, 30 or 35 miles an hour in a
        50 mile an hour zone. She was swerving onto the right shoulder of the
        roadway. By the time I had gotten close enough to her to actually initiate
        the stop, she was turning on to Imperial, right there next to Coca-Cola and
        Wal-Mart. She was unable to negotiate the right-hand turn onto Imperial
        and turned too wide. And if you saw the green motorcycle, she almost
        struck the motorcycle when she made the turn. . . .

        Eventually, Officer Foley initiated a stop of appellant’s vehicle. Appellant crossed

five lanes of traffic and drove dangerously into a parking lot. After both vehicles had

stopped, Officer Foley approached appellant’s vehicle and noticed that:

        She was—her—like I said in the video, her speech was very slurred. She
        was unable to complete sentences. She would start to say a sentence and
        then just stop mid-sentence or mid-word and then just completely rephrase
        that sentence. She just was—her face was—I’m sorry. Her eyes were
Wilcher v. State                                                                          Page 5
        droopy, bloodshot. She just appeared to be having a hard time talking, in
        general.

Officer Foley later administered field-sobriety tests, all of which appellant failed.

Specifically, appellant showed six of six clues on the horizontal-gaze-nystagmus test, and

she was unable to complete the walk-and-turn and one-leg-stand tests.

        Texas Highway Patrol Trooper Jarrod Hubbard, a drug-recognition expert,

testified that appellant told him that she was taking Xanax and Advil. Appellant told

Trooper Hubbard that she had voluntarily taken the medications “around 6:30 a.m. that

morning.” Trooper Hubbard noted that he evaluated appellant at 12:20 p.m. on the same

day. Later in his testimony, Trooper Hubbard stated that he believed that appellant had

lost the normal use of her mental and physical faculties.

        Appellant testified on her own behalf. During her testimony, appellant admitted

that, on the day in question, she operated a motor vehicle on a public roadway; that she

did not have normal use of her mental and physical faculties; and that she was

intoxicated. Appellant also acknowledged that she voluntarily took her medicine on the

day in question, but that she did not take the medications any differently than she usually

did. Appellant denied overdosing, taking the wrong medications, or that the medication

had ever done “anything weird to [her].” On cross examination, appellant noted that she

also took Tramadol in addition to her Xanax prescription. Both of these medications warn

against operating heavy machinery until the patient understands the effects of the

medications on their body.
Wilcher v. State                                                                     Page 6
        Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a rational juror could have concluded beyond a reasonable doubt that appellant

voluntarily took her medicine, was intoxicated, and operated a motor vehicle in a public

place on the day in question. See id. §§ 6.01(a), 49.04(a); Farmer, 411 S.W.3d at 905; see also

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894. Accordingly, we hold

that the evidence is sufficient to support appellant’s conviction. We overrule appellant’s

first issue.

                                   II.     THE JURY CHARGE

        In her second issue, appellant argues that the trial court erred in denying her

request for a charge instruction regarding the voluntariness of her conduct where she

presented evidence that she did not voluntarily drive while intoxicated.

A.      Applicable Law

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly

preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved

at trial by a proper objection, a reversal will be granted only if the error presents egregious

harm, meaning appellant did not receive a fair and impartial trial. Id. To obtain a reversal


Wilcher v. State                                                                         Page 7
for jury-charge error, appellant must have suffered actual harm and not just merely

theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v.

State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

        Here, appellant contends that the evidence demonstrated that she was entitled to

an instruction on voluntariness under Section 6.01(a). At trial, appellant requested in

writing and on the record a Section 6.01(a) instruction in the charge, which was denied

by the trial court.1

        The district court shall provide the jury with “a written charge distinctly setting

forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).

The law applicable to the case includes “statutory defenses, affirmative defenses, and

justifications whenever they are raised by the evidence.” Walters v. State, 247 S.W.3d 204,

208-09 (Tex. Crim. App. 2007). “[A] defense is supported (or raised) by the evidence if

there is some evidence, from any source, on each element of the defense that, if believed

by the jury, would support a rational inference that that element is true.” Shaw v. State,

243 S.W.3d 647, 658-59 (Tex. Crim. App. 2007); see TEX. PENAL CODE ANN. § 2.03(c) (West


        1   Appellant requested the following instruction with regard to voluntariness:

        You are instructed that a person commits an offense only if he voluntarily engages in
        conduct, including an act, an omission, or possession. A person involuntarily takes an
        intoxicant if he takes a medication according to a physician’s prescription.

                Now, if you believe from the evidence beyond a reasonable doubt that on the
        occasion in question the defendant did operate a motor vehicle in a public place while
        intoxicated but you further believe from the evidence that operating the vehicle was not
        the result of any voluntary act or conduct on the part of the defendant, of if you have a
        reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.

Wilcher v. State                                                                                      Page 8
2011) (“The issue of the existence of a defense is not submitted to the jury unless evidence

is admitted supporting the defense.”).

        “[W]e do not apply the usual rule of appellate deference to trial court rulings when

reviewing a trial court’s decision to deny a requested defensive instruction.” Bufkin v.

State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). Rather, “we view the evidence in the

light most favorable to the defendant’s requested submission.” Id. A defendant is

entitled to a jury instruction on a defensive issue if it is raised by the evidence, regardless

of the strength or credibility of that evidence. Farmer, 411 S.W.3d at 906 (citing Granger v.

State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)). However, if the evidence, viewed in the

light most favorable to the defendant, does not raise the defense, an instruction on that

defense is not required. See id.

B.      Discussion

        As noted in Farmer, “[a]ll that is necessary to satisfy Section 6.01(a) of the Texas

Penal Code is that the commission of the offense included a voluntary act.” 411 S.W.3d at

907 (citing Rogers, 105 S.W.3d at 638) (emphasis in original). In this case, appellant makes

no allegation that her arm movement to pick up and ingest the Ambien, Tramadol, and/or

Advil was the result of anything other than her own conscious action, and no other

evidence at trial supported her request for a jury instruction on voluntariness. See id. at

907-08. Stated another way, this is not a case of unknowingly or unwillingly taking

pharmaceutical medications; rather, this is a case of knowingly taking pharmaceutical


Wilcher v. State                                                                         Page 9
medication but mistakenly failing to comprehend or anticipate the effect such

medications would have on her body. See id. Indeed, appellant admitted at trial that she

voluntarily took the medications and that she was intoxicated and had no control over

her mental and physical faculties while she was driving. Viewing the evidence in the

light most favorable to appellant, we cannot say that the evidence raised the issue of

whether appellant voluntarily ingested the medications. See Shaw, 243 S.W.3d at 658-59;

Bufkin, 207 S.W.3d at 782; see also Farmer, 411 S.W.3d at 907-08. As such, we conclude that

the trial court properly denied appellant’s request to include a defensive instruction on

voluntariness. See Farmer, 411 S.W.3d at 907-08. We overrule appellant’s second issue.

                                     III.   CONCLUSION

        Having overruled both issues on appeal, we affirm the judgment of the trial court.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 28, 2016
Do not publish
[CR25]




Wilcher v. State                                                                    Page 10
