Opinion issued August 13, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00684-CR
                            ———————————
                    DAVID MICHAEL BRYANT, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 122nd District Court
                          Galveston County, Texas
                       Trial Court Case No. 16CR2992


                          MEMORANDUM OPINION

      David Michael Bryant was indicted for the felony offense of evading arrest in

a motor vehicle. A Galveston County jury found Bryant guilty of the offense, and

the trial court sentenced him to five years in prison and suspended imposition of the

sentence, assessed three years of community supervision and assessed a $1,000 fine.
      In a single issue, Bryant contends on appeal that the trial court’s failure to

instruct the jury on the defense of involuntary intoxication constituted error that

caused him egregious harm. We hold that Bryant failed to preserve this issue for

review and therefore affirm.

                                    Background

      In the early morning hours of November 5, 2016, a patrol officer with the

Kemah Police Department was dispatched to a bar to address a disturbance that

started after the bartender refused to serve an individual. Before the officer arrived,

the individual left the bar in a black pickup truck. The officer encountered a truck

that matched the description and confirmed that the license plate number matched

the one given when the disturbance was reported.

      After the officer turned on his emergency lights, and the pickup stopped, but

the pickup accelerated rapidly. The officer pursued the pickup, which was driving at

speeds in excess of 100 miles per hour, failing to stay within one lane, and nearly

striking several vehicles. Eventually, several officers joined the pursuit and used

their patrol cars to surround the pickup. Bryant, the truck’s driver, was arrested.

      Bryant testified that a medical issue he has had since 2014 causes chronic

pain, for which doctors prescribed acetaminophen with codeine and diazepam. The

day and evening of the incident, Bryant took those medications about every four

hours. According to his testimony, Bryant blacked out shortly after taking a third


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dose of each medication at about 5:00 P.M. and does not remember anything that

happened after that until he awoke in jail the following morning.

      Bryant did not request, and the trial court did not submit, a jury instruction on

the defense of involuntary intoxication.

                                   DISCUSSION

      Bryant contends that the trial court erred by not including an involuntary-

intoxication instruction sua sponte in the charge because it prevented the jury from

considering whether he lacked the intent to intentionally evade arrest. The State

responds that Bryant was required to make his own request for the defensive

instruction or object to its omission and, because he did not, he waived this

contention for appeal.

      The jury charge must include an instruction on any defensive theory raised by

the evidence and timely requested by the defendant. Booth v. State, 679 S.W.2d 498,

500 (Tex. Crim. App. 1984). On request, a defendant is entitled to a defensive

instruction regardless of whether the evidence is strong or weak, unimpeached or

contradicted and regardless of the trial court’s opinion about the its credibility. See

Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003); Arnold v. State, 742

S.W.2d 10, 13 (Tex. Crim. App. 1987).

      Generally, the trial court has the duty to deliver to the jury “a written charge

distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. art.


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36.14. The trial court, however, has no duty to instruct the jury sua sponte on

unrequested defensive issues because they are not “the law applicable to the case.”

Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see also Delgado v.

State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007) (explaining that rule that

trial courts are not obliged to sua sponte submit defensive issues stems in part from

rationale that decision to request defensive issue is matter of trial strategy). As a

result, a defendant who fails to preserve his request for a defensive instruction cannot

complain about its omission on appeal; he has procedurally defaulted his complaint.

See Vega, 394 S.W.3d at 519.

      Bryant concedes that he did not request a jury instruction on involuntary

intoxication or otherwise object to the charge as submitted. We therefore hold that

he waived appellate review of this issue. See TEX. R. APP. P. 33.1(a).

                                   CONCLUSION

      We affirm the judgment of the trial court.




                                               Gordon Goodman
                                               Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).
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