                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-411-CR

ANGELA K. SPENCE                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                  STATE

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     FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                I. Introduction

     In four issues, Appellant Angela K. Spence appeals from her conviction

for Driving While Intoxicated (“DWI”). We affirm.

                     II. Factual and Procedural Background

     On New Years Day in 2007, around 1:30 a.m., Bedford Police Officer

James McClure responded to a dispatch call regarding a possible intoxicated


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         … See Tex. R. App. P. 47.4.
driver.   After locating the vehicle described by dispatch, and observing the

driver commit a traffic violation, Officer McClure initiated a stop. He McClure

approached the vehicle and asked the driver, later identified as Spence, for her

driver’s license and insurance.   While talking with Spence, Officer McClure

smelled a strong odor of alcohol, noticed that Spence had bloodshot, watery

eyes, and observed that she had a hard time focusing. When asked if she had

been drinking, Spence informed him that she had had one glass of wine about

two hours before being pulled over. Officer McClure asked Spence to step out

of the vehicle so he could administer standard field sobriety tests.      When

Spence exited the vehicle and began walking, Officer McClure noticed that she

was “very unsteady” and “needed support.”         After administering the field

sobriety tests, Officer McClure placed Spence under arrest for DWI. He then

transported her to the Bedford jail. While at the jail, Spence consented to the

taking of two breath specimens, which revealed that she had a blood alcohol

concentration of .200 and .204, respectively.

      The State charged Spence with the offense of DWI. Spence pleaded not

guilty. At trial, Spence testified that on December 31, 2006, she had had two

glasses of wine while eating dinner with some friends. After dinner, she had

gone to a friend’s condo and, although given an alcoholic beverage, had not

consumed any alcohol.     After leaving the condo, she had gone to the Iron


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Cactus, a Mexican grill and margarita bar, where she remembered having one

glass of wine. Her last memory before giving her thumb print in jail was of

dancing with her friend, Baxter, at the Iron Cactus and of Baxter leaving her to

go get himself a drink.

      When questioned about whether she had ever been intoxicated before,

Spence testified to the following:

      [State]: Have you ever been intoxicated before?

      [Spence]: Yes.

      [State]: And how much did you drink to make yourself intoxicated?

      [Spence]: I have not had that much before in my life, but probably
      a lot. Maybe—I had shots one time, so shots did it.

      [State]: Do you remember how many shots?

      [Spence]: Probably four or so.

      ...

      [State]: The night that you got intoxicated on those shots—

      [Spence]: Yeah.

      [State]: You woke up the next morning.          Do you remember
      everything that happened the night before?

      [Spence]: I mean, most of it, yeah.

      [State]: But not everything.




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      [Spence]: I mean, I don’t know to be sure, but I have not been
      drunk that often, but I think I remember most everything.

      In addition to Spence’s testimony, the defense introduced evidence

regarding C.M., another patron at the Iron Cactus on the night in question, who

had allegedly been drugged and sexually assaulted. The defense argued that,

like C.M., Spence must have been drugged too and that it was the drug that

caused her to continue drinking.     To support this argument, the defense

introduced an affidavit from E.W., a friend of C.M.’s, stating that C.M.

      is a friend of mine and was staying in my home during the holidays,
      December 2006.

      She went to dinner with me, my roommate, and other friends of
      mine on 12/31/06 until approx. 10:30 or 11:00 pm. [T]hen we
      went together to Iron Cactus Bar & Grill for a New Year’s Eve
      party. We arrived at the party at approx. 11:00 pm.

      I left the party with several friends around 1:30 am 01/01/07 and
      [C.M.] stayed behind with my roommate. She had not been acting
      questionably—she was lucid, calm, and in control when I left the
      party. [C.M.] did not return home that night. The next morning,
      [C..M.]’s mother called my roommate and told us that [C.M.]
      suspected that she had been given a date-rape drug and possibly
      raped, and that [C.M.] had gone to Parkland Hospital to see a
      doctor as a result of her suspicion. At that point, my roommate
      and I went to meet [C.M.] @ Parkland.

The defense also introduced C.M.’s medical records, which showed that C.M.

had been admitted to the hospital and tested for STD exposure. The medical

records did not confirm that C.M. had been drugged or sexually assaulted.



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      On cross-examination, the State questioned Spence on whether she had

ever undergone any kind of testing to determine if she had been drugged.

Spence responded that she had not. On recross-examination, when questioned

further about whether she had been tested, Spence responded, “I mean, I didn’t

get a test afterwards, so—but the assumption is absolutely that, you know,

there was something else involved.”

      After taking the matter under advisement, the trial court found Spence

guilty of the offense of DWI.

      During a combined hearing on Spence’s “Motion for Reconsideration of

Judgment” and on punishment, the trial court orally stated that “there was an

involuntary intoxication in this case.” At the close of the hearing, the trial court

denied Spence’s motion and upheld its judgment of guilty.           The trial court

sentenced Spence to 120 days’ confinement and assessed a $550 fine,

suspended the sentence, and placed her on twelve months of community

supervision. This appeal followed.

                                III. Involuntary Act

      In her first three issues, Spence argues that the trial court’s finding that

Spence was involuntarily intoxicated constitutes a finding that her intoxication

was the result of an involuntary act—that is, that Spence did not voluntarily




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become intoxicated—and, thus, the evidence is legally insufficient to support

her conviction. We disagree.

A. Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

B. Applicable Law

      A person who commits an act in violation of a strict liability statute may

be held criminally liable even though she might be innocent of any criminal

intent. See State v. Walker, 195 S.W.3d 293, 298 (Tex. App.—Tyler 2006,

no pet.). Strict liability statutes are traditionally associated with the protection

of public health, safety, or welfare. Aguirre v. State, 22 S.W.3d 463, 473

(Tex. Crim. App. 1999). Generally, the more serious the consequences to the

public, the more likely the legislature meant to impose liability without regard

to fault. Thompson v. State, 44 S.W.3d 171, 180 (Tex. App.—Houston [14th

Dist.] 2001, no pet.).    In most strict liability offenses, the statutes protect

unwitting and unwilling members of the public from the noxious and harmful


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behavior of others in situations in which it would be difficult for members of the

public to protect themselves. Id. If a statute plainly dispenses with a culpable

mental state as an element of the offense, it is a strict liability statute. See

Walker, 195 S.W.3d at 298.

      Under Texas law, a person commits DWI “if the person is intoxicated

while operating a motor vehicle in a public place.”       Tex. Penal Code Ann.

§ 49.04 (Vernon 2003). A person is intoxicated if she does not have “the

normal use of mental or physical faculties by reason of the introduction of

alcohol . . . or any other substance into the body.” Id. § 49.01(2). Under

chapter 49 of the penal code, proof of a culpable mental state is not required

for a DWI conviction.    Id. § 49.11; see Owen v. State, 525 S.W.2d 164,

164–65 (Tex. Crim. App. 1975). Therefore, DWI is a strict liability offense.

See Walker, 195 S.W.3d at 298.

      Section 6.01(a) of the penal code provides, however, that, “[a] person

commits an offense only if he voluntarily engages in conduct, including an act,

an omission, or possession.” Tex. Penal Code Ann. § 6.01(a) (Vernon 2003).

      In Rogers v. State, the court of criminal appeals addressed what this

requirement means:

      [T]he ‘voluntary act’ requirement does not necessarily go to the
      ultimate act . . . but only that criminal responsibility for the harm
      must ‘include an act’ that is voluntary . . . .


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

105 S.W.3d 630, 638 (Tex. Crim. App. 2003) (emphasis added).

      Various courts of appeals, in addressing the issue of voluntariness, have

looked at “involuntary act” or “automatism” as a defense to DWI. See, e.g.,

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

(providing a detailed analysis and application of automatism as a defense to

DWI); see also Stamper v. State, No. 05-02-01730-CR, 2003 WL 21540414,

at *1 (Tex. App.—Dallas July 9, 2003, pet. ref’d) (mem. op., not designated

for publication) (acknowledging that the appellant incorrectly argued involuntary

intoxication when she should have argued involuntary act); Waters v. State, No.

01-96-00631-CR, 2001 WL 754759, at *3 (Tex. App.—Houston [1st Dist.]

June 29, 2001, no pet.) (not designated for publication) (analyzing whether

appellant voluntarily became intoxicated). 2


      2
        … This is not to be confused with “involuntary intoxication,” which is not
a defense to DWI. See Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App.
1979) (stating that involuntary intoxication is a defense to criminal liability for
offenses requiring a culpable mental state when (1) the accused has exercised
no independent judgment or volition in taking the intoxicant, and (2) as a result
of his intoxication, the accused did not know that his conduct was wrong or
was incapable of conforming his conduct to the requirement of the law he
allegedly violated); see also Brown v. State, 290 S.W.3d 247, 251 (Tex.
App.—Fort Worth 2009, pet. ref’d) (declaring that the offense of DWI does not
require a culpable mental state; therefore, involuntary intoxication is not a

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      In order to assert “involuntary act” as a defense, however, the defendant

must produce “evidence of an independent event, such as the conduct of a

third party, that could have precipitated the incident.” Rhodes v. State, 997

S.W.2d 692, 694 (Tex. App.—Texarkana 1999, pet. ref’d) (citing Brown v.

State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997)). In addition, the defense

is available only “if the accused admits committing the act or acts charged and

seeks to absolve [herself] of criminal responsibility for engaging in the conduct.”

Peavey, 248 S.W.3d at 465; Trujillo v. State, 227 S.W.3d 164, 169 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d).

C. Analysis

      Here, the trial court stated at the combined hearing on Spence’s “Motion

for Reconsideration of Judgment” and on punishment, “[T]here was an

involuntary intoxication in this case,” not that there was an involuntary act.

Although Spence invites us to speculate that the trial court really meant to say

“involuntary act”; we decline this invitation for two reasons.

      First, as involuntary intoxication is not a defense to DWI, and the trial

court upheld Spence’s conviction, we cannot conclude that the trial court made

a contrary finding of involuntary act based solely upon this statement. See



defense to DWI); Aliff v. State, 955 S.W.2d 891, 893 (Tex. App.—El Paso
1997, no pet.) (same).

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Brown, 290 S.W.3d at 251 (holding that involuntary intoxication is not a

defense to DWI); Aliff, 955 S.W.2d at 893 (same). Second, the evidence does

not support a finding that an involuntary act caused Spence’s intoxication.

      The record shows that Spence was driving when Officer McClure pulled

her over for committing a traffic violation. It also shows that upon making

contact with Spence, Officer McClure smelled a strong odor of alcohol,

observed that she had bloodshot, watery eyes, and noticed that she had a hard

time focusing. Officer McClure testified that Spence was “very unsteady” and

“needed support” when she exited her vehicle and began walking. Spence

herself testified to having two glasses of wine prior to going to the Iron Cactus

and one while she was at the Iron Cactus. Finally, Spence’s breath specimens

revealed that she had a blood alcohol concentration of .200 and .204.

      The record also revealed that (1) Spence did not recall what had occurred

from the time her friend Baxter had left her to go and get himself a drink at the

Iron Cactus up to her giving her thumb print at the jail, (2) although another

patron at the Iron Cactus on the same night as Spence was allegedly drugged

and sexually assaulted, those allegations were not confirmed, (3) Spence never

testified that anyone drugged her drink, only that “the assumption is absolutely

that, you know, there was something else involved,” (4) Spence, at one time,

had become intoxicated on “about four or so” shots, (5) Spence did not know


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for sure if she remembered everything the next day when she had been

intoxicated on other occasions, (6) there was no evidence pertaining to the one

glass of wine that Spence admitted to having at the Iron Cactus—that is,

whether she received it directly from an employee or indirectly from a friend or

a stranger, (7) there was no evidence that Spence ever left her drink

unattended, (8) there was no evidence that anyone placed anything into

Spence’s drink, and (9) there was no evidence as to the types of drugs that

could have been put into Spence’s drink and the effect that those drugs might

have had on Spence’s actions.        Thus, the trial court’s implicit rejection of

Spence’s defense of involuntary act is supported by the evidence. See Howey

v. State, No. 05-08-00483-CR, 2009 WL 264797, at *5–6 (Tex. App.—Dallas

Feb. 5, 2009, no pet.) (mem. op., not designated for publication) (concluding

that appellant who did not recall driving her car or the events surrounding her

arrest was not entitled to the defense of involuntary act because she voluntarily

consumed at least two glasses of wine and her assertion that someone might

have drugged her was too speculative); Peavey, 248 S.W.3d at 465 (reaching

the same result on similar facts).

      Therefore, because we hold that this is not a case of involuntary act, we

further hold that a rational trier of fact could have found that the evidence at

trial was sufficient to establish the elements of DWI beyond a reasonable doubt.


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See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at

778; see also Tex. Penal Code Ann. § 49.04 (stating elements of DWI).

Accordingly, we overrule Spence’s first three issues.

                          IV. Constitutional Violation

      In her fourth and final issue, Spence contends that “[i]f Texas Penal Code

sect. 49.11 requires a finding of guilt for the offense of driving while

intoxicated when the acts leading to intoxication were involuntary, it is

unconstitutional in violation of due process of law.” However, because we do

not hold that section 49.11 requires a finding of guilt when the acts leading to

intoxication were involuntary, but instead hold that the trial court’s finding of

involuntary intoxication is not a finding of involuntary act, we do not reach

Spence’s final issue.3




      3
       … Spence also argues that section 49.11 of the Texas Penal Code is
unconstitutional based on the elimination of the mental state requirement.
Spence’s constitutional objections during trial, however, centered on the act of
voluntariness and not on the demand that a culpable mental state apply to the
offense of DWI. Therefore, Spence has failed to preserve this issue for our
review. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.
2004) (holding that the complaint made on appeal must comport with the
complaint made in the trial court or the error is forfeited); see also Karenev v.
State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that even facial
constitutional challenges must first be raised at trial).

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                               V. Conclusion

     Having overruled Spence’s dispositive issues, we affirm the trial court’s

judgment.




                                          BOB MCCOY
                                          JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

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

DELIVERED: November 5, 2009




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