                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-041-CR


SCOTT C. BROWN                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

                                I. Introduction

      Appellant Scott C. Brown appeals from his conviction for Driving While

Intoxicated-Misdemeanor Repetition. In one point, Brown asserts that the trial

court erred by denying his request for a special jury instruction on the defense

theory of involuntary intoxication. We affirm.
                    II. Factual and Procedural Background

      In June 2007, Michael Sands, while driving down a residential street,

observed Brown driving towards him in an unsafe manner. Hoping to avoid an

accident, Sands pulled his car over to the curb and came to a complete stop.

However, as Brown began to pass, he hit Sands’ car, clipped a tree, and

crashed into a ditch. When the police arrived at the scene, they performed field

sobriety tests on Brown. Brown failed the tests and admitted to the police that

he had been drinking. Subsequently, the police took Brown to John Peter Smith

Hospital where his blood alcohol content measured .09. Brown was placed in

custody and charged with DWI-Misdemeanor Repetition.

      During trial, Brown testified that he had consumed two tumblers of

whiskey the night before his arrest, and that sometime during the night he had

woken up to take his blood pressure medicine but had mistakenly taken

Ambien.   Brown further testified that, because of the mistake, he did not

remember consuming more liquor or driving his car. In fact, Brown claimed that

he had no memory from the time he went back to bed, after taking the Ambien,

to when the nurse was drawing his blood at John Peter Smith Hospital. Finally,

Brown testified that the Ambien pills were a different color and shape than his

blood pressure pills, and that he had been warned by his doctor not to take

Ambien in combination with alcohol.

                                       2
      At the close of trial, Brown requested an involuntary intoxication jury

instruction; however, the trial court denied his request. Subsequently, the jury

found Brown guilty and the trial court sentenced him to 300 days’ confinement

probated for two years, and a $750 fine. This appeal followed.

                  III. Jury Instruction—Involuntary Intoxication

      In his sole issue, Brown complains that the trial court erred by denying his

request for a jury instruction on involuntary intoxication. The State, however,

argues that Brown was not entitled to a jury instruction on involuntary

intoxication because involuntary intoxication is not a defense to DWI, where,

as here, mental state is not an element of the offense.

A. Standard of Review

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

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred. If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Id. at 731–32. Error

in the charge, if timely objected to in the trial court, requires reversal if the error

was “calculated to injure the rights of [the] defendant,” which means no more

than that there must be some harm to the accused from the error. Tex. Code

Crim. Proc. Ann. art. 36.19 (Vernon 2007); see also Abdnor, 871 S.W.2d at

731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.1984),

                                          3
overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim.

App.1988). In other words, a properly preserved error will require reversal as

long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this

determination, “the actual degree of harm must be assayed 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.” Id.; see also Ovalle

v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).

B. Applicable Law

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

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

§ 49.04 (Vernon 2008).      A person is intoxicated if he 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.” Tex. Penal Code Ann.

§ 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; Nelson v. State, 149

S.W .3d 206, 211 (Tex. App.—Fort Worth 2004, no pet.).             However, an

essential element of DWI is voluntary intoxication. See Lewis v. State, 951

S.W.2d 235, 237 (Tex. App.—Beaumont 1997, no pet.).




                                       4
C. Discussion

      Here, Brown’s sole argument is that the trial court improperly refused to

include the following jury instruction:

      [I]nvoluntary intoxication is a defense to prosecution for an offense
      when it is shown that the accused has exercised no independent
      judgment or volition in taking the intoxicant, and 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 requirements of
      the law he allegedly violated.

      To support his contention that the trial court erred by refusing to submit

the requested charge, Brown relies on Torres v. State, which recognized

involuntary intoxication as a defense to criminal conduct. Torres v. State, 585

S.W.2d 746, 749–50 (Tex. Crim. App. 1979).

      In Torres, an aggravated robbery case, Torres’s accomplice testified that

he had put Thorazine tablets into her glass of Alka Seltzer without her

knowledge about an hour before they broke into the victim’s home. Id. at 748.

The trial judge refused Torres’s requested charge directing the jury to acquit her

if they found that she was involuntarily intoxicated and further found that she

did not act voluntarily in the commission of the offense because of the

intoxication. Id.

      In its decision to reverse and remand Torres’s conviction on the basis of

jury charge error, the court of criminal appeals recognized the defense of


                                          5
involuntary intoxication. Id. at 749. It reasoned that, even though the common

law disfavored intoxication as a defense to avoid criminal responsibility because

a voluntary act rendered an individual of unsound mind, the reason for disfavor

did not exist when the intoxication was not self-induced. Id. at 748–49.

      The Court then held that involuntary intoxication is a defense to criminal

culpability when it is shown that (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 requirements of the law he allegedly

violated. Id. at 749 (emphasis added).

      Although we have previously extended the holding in Torres to the

offense of DWI, we decline to do so from this day forward for several reasons.

See Nelson, 149 S.W.3d at 211; McKinnon v. State, 709 S.W.2d 805, 807

(Tex. App.—Fort Worth 1986, no pet.).

      First, the Legislature has not seen fit to include a culpable mental state

in its definition of the offense. In fact, proof of a culpable mental state is

expressly not required for conviction of an offense dealing with intoxication and

for alcoholic beverage offenses. Tex. Penal Code Ann. § 49.11.

      Second, the court of criminal appeals has declined to include a culpable

mental state in the offense. See Owen v. State, 525 S.W.2d 164, 164–65

                                       6
(Tex. Crim. App. 1975); Ex parte Ross, 522 S.W.2d 214, 217 (Tex. Crim. App.

1975) (criminal or unlawful intent not essential element of driving while

intoxicated), cert. denied, 423 U.S. 1018 (1975), abrogated on other grounds

by Ex parte McCain, 67 S.W.3d 204, 207, 209 (Tex. Crim. App. 2002).

      Third, this court has followed the Legislature’s and court of criminal

appeals’ direction and held that the offense does not require a culpable mental

state. See Nelson, 149 S.W.3d at 210 (holding that involuntary intoxication

is a defense to criminal culpability and that proof of a culpable mental state is

not required in prosecuting the offense of DWI).

      Finally, other Texas courts that have considered the issue have held that

the offense of DWI does not require a culpable mental state and have further

held that involuntary intoxication is not a defense to DWI.1 See, e.g., Stamper,

2003 WL 21540414, at *1(emphasizing that involuntary intoxication is not a




      1
        … Various courts of appeals, in addressing this issue, have looked at an
involuntary act, i.e., 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, no. pet.) (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).

                                       7
defense to DWI and that the correct defense is involuntary act); Bearden v.

State, No. 01-97-00900-CR, 2000 WL 19638, at *4 (Tex. App.—Houston [1st

Dist.] Jan. 13, 2000, pet. ref’d) (not designated for publication) (declining to

extend the holding in Torres to the offense of driving while intoxicated); Aliff

v. State, 955 S.W.2d 891, 893 (Tex. App.—El Paso 1997, no pet.) (holding

that proof of culpable mental state is not required for a DWI conviction, thus,

involuntary intoxication cannot be a defense to such a charge).

      Therefore, we hold that the trial court did not err in refusing Brown’s

request for a jury instruction on involuntary intoxication because involuntary

intoxication cannot be a defense to DWI; accordingly, we overrule Brown’s sole

issue.2




      2
        … Furthermore, based on the facts in this case, there is insufficient
evidence to support a claim to the defense of automatism. First, Brown’s loss
of memory is not a defense. See Peavy, 248 S.W.3d at 465 (emphasizing that
appellant’s lack of memory, as to the events that had occurred, was not enough
to raise the defense of automatism). Second, the evidence demonstrates that
Brown’s acts were voluntary. For example, Brown testified that he mistakenly
took Ambien; however, he did so of his own volition. See Hanks v. State, 542
S.W.2d 413, 416 (Tex. Crim. App. 1976) (holding there must be an absence
of an exercise of independent judgment and volition on the part of the accused
in taking the intoxicant). And finally, Brown failed to direct us to any evidence
that showed he was unconscious or semiconscious at the time of the offense.
See Peavy, 248 S.W.3d at 465.

                                       8
                               IV. Conclusion

     Having overruled Brown’s sole issue, we affirm the trial court’s judgment.




                                          BOB MCCOY
                                          JUSTICE


PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DAUPHINOT, J. filed a concurring and dissenting opinion.

PUBLISH

DELIVERED: February 12, 2009




                                      9
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-041-CR


SCOTT C. BROWN                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE

                                   ------------

     FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY

                                   ------------

             CONCURRING AND DISSENTING OPINION

                                   ------------
      I agree that involuntary intoxication is not a defense to driving while

intoxicated (DWI) under the facts of this case. But to hold that it can never be

a defense to DW I goes too far. I cannot join the majority in that sweeping

statement; I therefore must respectfully dissent.

      Courts have long struggled with the conflict between the due process

requirement of criminalizing only conduct that involves both a culpable mental

state and a criminal act (mens rea and actus reus) and the apparent intent of
the legislature to dispense with the requirement of a culpable mental state in

criminalizing intoxication offenses involving the operation of a vehicle while

intoxicated. In the past, we resolved the conflict by concluding that when a

person voluntarily ingests an intoxicant and then voluntarily operates a vehicle,

the requisite culpable mental state is implied or imputed.1 Courts eventually

concluded that the legislature intended to dispense with the requirement of a

culpable mental state in the offense of DWI.2       The legislature also passed

section 49.11 of the penal code to relieve both the bench and bar of any

confusion regarding the necessity of proving a culpable mental state in DWI

prosecution.3

      Traditionally, the defense of involuntary intoxication applies to an

affirmative defense of insanity (due to involuntary intoxication).4 In that sense,

the defense of involuntary intoxication would be irrelevant in a DWI case

because it would go to the inability to perceive the wrongfulness of the



      1
       … Cockrell v. State, 135 Tex. Crim. 218, 117 S.W.2d 1105, 1109–10
(Tex. Crim. App. 1938).
      2
          … See Lomax v. State, 233 S.W.3d 302, 311 (Tex. Crim. App. 2007).
      3
       … See Tex. Penal Code Ann. § 49.11(a) (Vernon 2003) (providing that
proof of mental state is not required for conviction of Chapter 49 offenses).
      4
      … Mendenhall v. State, 77 S.W.3d 815, 817–18 (Tex. Crim. App.
2002); Torres v. State, 585 S.W.2d 746, 748–50 (Tex. Crim. App. 1979).

                                        2
defendant’s acts.     That is, it would defeat the culpable mental state, and

because DWI requires no culpable mental state, the defense would not be

relevant.5

      The lines between mens rea and actus reus have been blurred in the DWI

context. Defendants, including Appellant, have argued that they are entitled to

a jury instruction on the issue of involuntary intoxication.          Courts have

responded, as has the majority here, that involuntary intoxication is not a

defense to a DWI offense.6 That response is not completely accurate.

      It is true that a defendant is not entitled to an instruction that involuntary

intoxication is a defense to DWI, and that is so for two reasons.             First,

“defense” is a term of art and exists only if enumerated in the penal code. 7

Involuntary intoxication is not enumerated as a defense in the penal code. 8

Second, as mentioned above, involuntary intoxication is an affirmative insanity




      5
       … Nelson v. State, 149 S.W.3d 206, 210 (Tex. App.—Fort Worth 2004,
no pet.).
      6
       … See, e.g., Otto v. State, 141 S.W.3d 238, 241 (Tex. App.— San
Antonio 2004), rev’d on other grounds, 173 S.W .3d 70 (Tex. Crim. App.
2005).
      7
          … Tex. Penal Code Ann. § 2.03(a) (Vernon 2003).
      8
          … See generally id. §§ 8.01–.07.

                                         3
defense,9 and therefore has no application to DWI, which does not require a

culpable mental state.

       DWI does require a voluntary act, however. 10 Section 6.01(a) of the

penal code provides, “A person commits an offense only if he voluntarily

engages in conduct, including an act, an omission, or possession.” 11           An

essential element of the offense of DWI is that the defendant operated a motor

vehicle in a public place while intoxicated.12

       Case law has attempted to reconcile the apparent conflict between the

requirement of voluntariness and the absence of a culpable mental state for

DWI.        Some courts have concluded that automatism, not involuntary




       9
      … Mendenhall, 77 S.W.3d at 817–18; Torres, 585 S.W.2d at 748–50;
see Tex. Penal Code Ann. § 8.04.
       10
            … Tex. Penal Code Ann. § 6.01(a) (Vernon 2003).
       11
            … Id.
       12
        … Id. §§ 6.01(a), 49.04; see also Ex parte Ross, 522 S.W.2d 214, 218
(Tex. Crim. App.) (“[I]t is apparent that the Legislature never intended to require
proof of the culpable mental state of a person charged with an offense where
one of the essential elements is voluntary intoxication.”) (emphasis added),
cert. denied, 423 U.S. 1018 (1975), abrogated on other grounds by Ex parte
McCain, 67 S.W.3d 204, 207, 209 (Tex. Crim. App. 2002).

                                        4
intoxication, is the proper defense to raise when the voluntariness of a DWI

defendant’s acts is at issue.13 The Austin Court of Appeals explained,

     [A]ppellant . . . claims that his defense was automatism, a defense
     of an individual not engaging in a voluntary act. Appellant points
     out that automatism as a defense involves, inter alia, being
     unconscious or semiconscious at the time of the acts constituting
     the offenses. Appellant argues that persons in such condition do
     not engage in a voluntary act.

           “ ‘Automatism is defined as (1) action or conduct occurring
     without will, purpose, or reasoned intention such as sleep walking,
     behavior carried out in a state of unconsciousness or mental
     dissociation without full awareness . . . , (2) The state of a person
     who, though capable of action is not conscious of his or her
     actions.’ “

           “Voluntariness” within the meaning of section 6.01(a) refers
     only to one’s own physical body movements.              Although
     “automatism” was not mentioned, the Texas Court of Criminal
     Appeals has stated in connection with the meaning of
     “voluntariness”:

     “If these physical movements are the nonvolitional result of
     someone’s act, are set in motion by some independent non-human
     force, are caused by a physical reflex or convulsion, or are the
     product of unconscious, hypnosis or other nonvolitional impetus,
     that movement is not voluntary.”

            The difficulty with appellant’s argument is that he does not,
     even now, sufficiently point out what evidence supports his claim
     to the defense of automatism—that of being unconscious or
     semiconscious at the time in question. The fact that appellant
     testified that he could not recall what had happened when he


     13
       … See, e.g. Peavey v. State, 248 S.W.3d 455 (Tex. App.—Austin
2008, pet. ref’d).

                                      5
      awakened in jail later that morning does not support his claim of
      automatism.     “[I]t is not enough [to raise the defense of
      automatism] that the defendant suffers from amnesia and thus
      cannot remember the events in question.”            The evidence
      demonstrates that appellant’s acts were voluntary. Appellant
      admitted that his consumption of beer on the date in question was
      voluntary. His claim that he might have been drugged by Tom
      Tutor is not supported by the evidence and is mere speculation.
      There was no evidence to show that appellant was unconscious or
      semiconscious at the time of the commission of the offenses
      charged.

            Moreover, an instruction on voluntariness under section
      6.01(a) is necessary only if the accused admits committing the act
      or acts charged and seeks to absolve himself of criminal
      responsibility for engaging in the conduct. “When a person claims
      the involuntary act defense he is conceding that his own body
      made the motion but denies responsibility for it.” Here, appellant
      did not admit committing the offenses charged.14

      I also point out that another problem with determining whether a

defendant has committed a voluntary act in the DWI context is the very broad

definition of the term “operate”:

      There is no statutory definition of the term “operate.” However,
      the Court of Criminal Appeals has held that, to find operation of a
      motor vehicle, “the totality of the circumstances must demonstrate
      that the defendant took action to affect the functioning of his
      vehicle that would enable the vehicle’s use.” In reaching its
      holding, the court repeated the reasoning enunciated in Barton:

               We do not accept the contention that to operate a
               vehicle within the meaning of the statute, the driver’s
               personal effort must cause the automobile to either


      14
           … Id. at 464–66 (citations omitted).

                                         6
            move or not move. Purposely causing or restraining
            actual movement is not the only definition of
            ‘operating’ a motor vehicle. In other words, we
            examine the totality of the circumstances to determine
            if [the defendant] exerted personal effort upon his
            vehicle for its intended purpose. 15

      In sum, I agree that a DWI defendant is not entitled to a jury instruction

on involuntary intoxication, because the jury instruction is an instruction on the

affirmative defense of insanity that goes only to a culpable mental state. I

therefore agree with the outcome reached by the majority. But because the

majority’s overbroad holding that a DWI defendant may never raise the defense

of involuntary intoxication conflicts with the requirements that a person must

voluntarily act—that is, voluntarily operate a vehicle and voluntarily partake of

intoxicants—to commit DWI, I must also respectfully dissent.




                                            LEE ANN DAUPHINOT
                                            JUSTICE

PUBLISH

DELIVERED: February 12, 2009




      15
        … Hearne v. State, 80 S.W.3d 677, 679 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (citations omitted).

                                        7
