                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


    ISMAEL ORTEGA,                                        §
                                                                             No. 08-13-00233-CR
                  Appellant,                              §
                                                                                Appeal from the
    v.                                                    §
                                                                   County Criminal Court Number Two
    THE STATE OF TEXAS,                                   §
                                                                          of Tarrant County, Texas
                  Appellee.                               §
                                                                                (TC #1297279)

                                                 OPINION

         Appellant Ismael Ortega appeals his misdemeanor conviction for driving while

intoxicated. After the jury found Appellant guilty, the trial court sentenced Appellant to 90 days’

confinement in the Tarrant County Jail. Appellant raises two issues on appeal.                             First, he

contends the trial court abused its discretion when it denied his motion for mistrial after a portion

of a video was mistakenly played to the jury. Second, Appellant contends the trial court erred in

denying his requested jury instruction on involuntary intoxication. We affirm.1

                                    SUMMARY OF THE EVIDENCE

         Around 2 a.m. on September 1, 2012, DPS Trooper Thomas approached a four-way stop in

Fort Worth, Texas, and found Appellant and his wife asleep in their car with the motor still

1
  This case was transferred from our sister court in Fort Worth, and we decide it in accordance with the precedent of
that court. TEX.R.APP.P. 41.3.
running. Thomas woke Appellant up by tapping on the car window. When Appellant got out of

the car, Thomas smelled alcohol coming from the car and on Appellant’s breath, and observed that

Appellant’s eyes were red and glazed. Although Appellant claimed he had only three drinks, he

performed poorly on the field sobriety tests. The in-car video of the stop and the field sobriety

tests was played for the jury. Thomas concluded Appellant’s normal use of his mental faculties

had been impaired due to drinking alcohol. See TEX. PENAL CODE ANN. § 49.01(2)(A) (West

2011) (intoxicated includes not having the normal use of mental faculties by reason of the

introduction of alcohol). No evidence of alcohol concentration was presented to the jury because

Appellant refused to take a breath test, and no blood sample was taken for analysis. See id. at §

49.01(2)(B) (intoxicated includes having an alcohol concentration of 0.08 or more).

       Appellant presented evidence that, unknown to him or his wife, his brother had left an

open, partially-filled gas can in the trunk of Appellant’s car that day. Appellant testified that he

and his wife had noticed an odor in the car that night and that on their way home after dinner and

drinks, his wife had decided to take a nap. In retrospect, Appellant thought gas fumes might have

affected her. Appellant also testified he had not felt intoxicated and thought he had passed out

due to the effects of the gas fumes. The trial court allowed an expert witness to testify that

breathing gas fumes can mimic alcohol ingestion and cause a person to pass out, and that gas

fumes emitted from the gas can in the car trunk could have had those effects in this case.

                                           MISTRIAL

       In his first issue, Appellant contends the trial court abused its discretion when it denied his

motion for mistrial after a portion of the in-car video was mistakenly played to the jury. He

claimed at trial that the prosecutor failed to timely mute the video allowing the jury to hear him


                                                 2
state, “I’ve got a DWI.”

         Immediately before trial, Appellant filed a motion requesting the exclusion of, among

other things, his statement “I’ve got a DWI” that occurred at “6:19 through 6:22” on the in-car

video. Due to time constraints, the parties agreed the prosecutor would mute the video at the

requested times rather than redacting the objectionable statements. When the video was played

for the jury, the prosecutor muted the sound at 6:18 through 6:23 of the recording, providing one

extra second at the beginning. The statement “I’ve got a DWI,” however, appeared on the video

two seconds earlier, starting at 6:16. Defense counsel admitted that her office had mistakenly

designated the wrong times. Appellant and his counsel claimed they heard Appellant state, “I’ve

got a DWI” when the video was played to the jury. The State argued that Appellant’s statement

was not audible to the jury. The trial court listened to the objectionable portion of the video three

times and determined that the audio was so unclear that the jury could not have understood what

Appellant said.        Accordingly, the trial court denied Appellant’s motion for mistrial.                          We

conclude that the trial court did not abuse its discretion in denying a mistrial based on its

determination that the jury could not have understood from the video that Appellant stated “I’ve

got a DWI.”2

         A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class of

highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App.

2009). We review the denial of a mistrial for an abuse of discretion. Id. We must uphold the

2
  There is no question that Appellant preserved error by requesting a mistrial without first objecting and requesting an
instruction to disregard. We recognize that the preferred procedure for a party to voice a complaint is: (1) to object;
(2) to request an instruction to disregard; and (3) then to move for a mistrial. Young v. State, 137 S.W.3d 65, 69
(Tex.Crim.App. 2004). “However, this sequence is not essential to preserve complaints for appellate review.” Id.
Here, the objectionable event occurred before counsel could have reasonably foreseen it, and an instruction to
disregard would not have had the desired effect, but rather would have emphasized what the jury had not heard. Id. at
70. Thus, the only possible “suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite
to presenting the complaint on appeal.” Id.
                                                            3
ruling if it was within the zone of reasonable disagreement. Id. Normally, in determining

whether a trial court abused its discretion by denying a mistrial, we would balance three factors:

(1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) the effectiveness of

the curative measures taken; and (3) the certainty of conviction or the punishment assessed absent

the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Mosley v. State,

983 S.W.2d 249, 259 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070 (1999).                    But,

application of this balancing test assumes there was misconduct or prejudice. Here, the trial court

concluded there had been no misconduct or prejudicial effect because it determined Appellant’s

statement could not have been heard or understood by the jury.

       In reviewing the trial court’s factual determination that the jury could not have understood

Appellant’s statement on the video, we are guided by the Court of Criminal Appeals’ decision in

Montanez v. State, 195 S.W.3d 101 (Tex.Crim.App. 2006). There, the Court held that the

deferential standard of review adopted in Guzman v. State applies to a trial court’s determination

of historical facts when that determination is based on a videotape recording admitted into

evidence at a suppression hearing.       Id. at 109.    In Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997), the Court held that an appellate court should afford “almost total

deference” to a trial court’s determination of historical facts and mixed questions of law and fact,

especially those based on an evaluation of credibility and demeanor.

       We conclude that this same standard of “almost total deference” applies in our evaluation

of the trial court’s determination that the audio was so unclear that the jury could not have

understood that Appellant said “I’ve got a DWI.” Our independent review of the video shows

that the statement did in fact occur two seconds before Appellant’s designated time window and


                                                  4
that the statement was not clear. But, more importantly, only the trial court, and not this Court,

was in the position to evaluate whether the jury could have understood that statement. We do not

know the layout or acoustics of the courtroom, the relative positions of the jury and the video

playback equipment, or the quality of that equipment or the audio it produced. Only the trial court

was in a position to evaluate all of those factors and to determine if the jury could have understood

the statement on the video.       Applying the proper deference to the trial court’s factual

determination, we conclude the trial court did not abuse its discretion in denying Appellant’s

motion for mistrial. We overrule Issue One.

                              INVOLUNTARY INTOXICATION

       At trial before the jury charge was submitted to the jury, counsel for Appellant asked the

trial court to include the defense of involuntary intoxication in the charge as follows:

               You are hereby instructed that involuntary 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 was [sic] a result of his intoxication via this
               intoxicant he did not know that his conduct was wrong or was
               incapable of conforming his conduct to the requirements of the law
               he allegedly violated.

The trial court denied the request. In his second issue, Appellant contends the instruction should

have been given because evidence of involuntary intoxication had been submitted to the jury.

Appellant claims he was unknowingly intoxicated by gasoline fumes from the uncapped can of gas

left in his car by his brother. At trial, Appellant presented evidence that, unknown to him or his

wife, his brother had left an open, partially-filled gas can in the trunk of Appellant’s car.

Appellant’s expert was allowed to testify that breathing gasoline fumes can mimic the effects of

alcohol intoxication. Appellant testified that he remembered leaving the tavern and sensing an


                                                 5
odd smell in the car, but did not remember anything more until the DPS trooper woke him and his

wife in the car. Appellant speculated that he and his wife were both overcome by gasoline fumes

and passed out at the stop sign on the way home.

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

v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012). We first determine whether error occurred;

if error did not occur, our analysis ends. Hailey v. State, 413 S.W.3d 457, 495 (Tex.App. – Fort

Worth 2012, pet. ref’d). Second, if error occurred, we then evaluate whether sufficient harm

resulted from the error to require reversal. Kirsch, 357 S.W.3d at 649; Hailey, 413 S.W.3d at 495.

We conclude that because involuntary intoxication is not a defense to the offense of driving while

intoxicated, the trial court did not err in refusing to submit the involuntary intoxication instruction.

         To support his contention the trial court erred by refusing to submit the requested charge,

Appellant 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). The Court

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 he was

incapable of conforming his conduct to the requirements of the law he allegedly violated.3 Id. at

749 (emphasis added). Thus, involuntary intoxication is a defense to criminal culpability. Id.

         Under Texas law, however, criminal culpability is not an element of a DWI offense, and

proof of a culpable mental state is not required for a DWI conviction. TEX. PENAL CODE ANN. §§

3
  The Court of Criminal Appeals later limited the scope of the involuntary intoxication defense. See Mendenhall v.
State, 77 S.W.3d 815, 818 (Tex.Crim.App. 2002) (because of the subsequent amendment of Texas Penal Code §
8.01(a), the language from which Torres held the involuntary intoxication defense was implicit, it is no longer an
affirmative defense that the defendant, due to involuntary intoxication, was incapable of conforming his conduct to the
requirements of the law he allegedly violated).
                                                          6
49.04, 49.11(a) (West 2011). Thus, the involuntary intoxication defense does not apply to a DWI

prosecution, and a trial court does not err in refusing an involuntary intoxication instruction in a

DWI case.4 Brown v. State, 290 S.W.3d 247, 251 (Tex.App. – Fort Worth 2009, pet. ref’d) (“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”); Nelson v. State, 149

S.W.3d 206, 211 (Tex.App. – Fort Worth 2004, no pet.) (same); Aliff v. State, 955 S.W.2d 891, 893

(Tex.App. – El Paso 1997, no pet.) (same).5 We conclude that because involuntary intoxication is

not a defense to driving while intoxicated, the trial court did not err in refusing to submit an

instruction on involuntary intoxication. We overrule Issue Two.

                                                  CONCLUSION

         Applying the proper deference to the trial court’s factual determination that the jury could


4
  Appellant also requested a jury instruction on the so-called voluntary act defense. See Whatley v. State, 445 S.W.3d
159, 166 (Tex.Crim.App. 2014) (Texas Penal Code § 6.01(a) requires a voluntary act as an element of guilt). The
defenses of involuntary intoxication and involuntary act are separate and distinct. Stamper v. State, No.
05-02-01730-CR, 2003 WL 21540414, at *1 (Tex.App. – Dallas July 9, 2003, pet. ref’d)(not designated for
publication); see Whatley, 445 S.W.3d at 166 (the issue of the voluntariness of one’s conduct is separate from the issue
of one’s mental state and a distinct inquiry from the knowing or intentional mens rea requirement). Appellant
specifically limited her second issue on appeal to the contention that the trial court erred in refusing to submit the
involuntary intoxication instruction. Thus, we do not address the trial court’s refusal to submit an instruction on the
voluntary act defense.

5
  See also Cox v. State, No. 05-12-00881-CR, 2013 WL 4528675, at *2 (Tex.App. – Dallas Aug. 27, 2013, no
pet.)(not designated for publication) (“As appellant concedes, involuntary intoxication is not a defense to the offense
of driving while intoxicated.”); Walker v. State, No. 01-09-00902-CR, 2010 WL 5187711, at *6 (Tex.App. – Houston
[1st Dist.] Dec. 23, 2010, no pet.)(not designated for publication) (“Texas courts have held that involuntary
intoxication is not a defense to DWI because the offense of DWI does not require a culpable mental state.”);
Rounsavall v. State, No. 07-09-00046-CR, 2010 WL 547092, at *3 (Tex.App. – Amarillo Feb. 17, 2010, no pet.)(not
designated for publication) (“the case law in Texas is unanimous that a trial court does not err when it refuses to give a
jury charge on involuntary intoxication in a driving while intoxicated case”); 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 involuntary intoxication defense to DWI); Spence v. State, No. 02-08-00411-CR, 2009 WL
3720179, at *4 (Tex.App. – Fort Worth Nov. 5, 2009, pet. ref’d)(not designated for publication) (“involuntary
intoxication is not a defense to DWI”); Curtin v. State, No. 13-04-00630-CR, 2006 WL 347025, at *1 (Tex.App. –
Corpus Christi-Edinburg Feb. 16, 2006, no pet.)(not designated for publication) (“We conclude the defense of
involuntary intoxication is not applicable to this case because the defendant’s mental state is not an element of the
offense of DWI.”).

                                                            7
not have heard and understood Appellant’s statement that “I’ve got a DWI,” we conclude the trial

court did not abuse its discretion in denying Appellant’s motion for mistrial. We also conclude

that because involuntary intoxication is not a defense to driving while intoxicated, the trial court

did not err in refusing to submit an instruction on involuntary intoxication. Accordingly, we

affirm the trial court’s judgment.


                                              STEVEN L. HUGHES, Justice
February 11, 2015

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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