                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00278-CR


KODY WILLIAM FARMER                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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      FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

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                MEMORANDUM OPINION1 ON REMAND

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                                   I. Introduction

      This case is on remand from the court of criminal appeals to consider the

State’s argument, not made in the trial court, that a proposed jury instruction from

Appellant Kody Farmer was a comment on the weight of the evidence. See

Farmer v. State (Farmer II), No. PD-1041-11, 2011 WL 4072126, at *1 (Tex.



      1
       See Tex. R. App. P. 47.4.
Crim. App. Sept. 14, 2011) (not designated for publication). We reverse the trial

court’s judgment and remand the case for a new trial.

                                 II. Background

      The facts of this case are set out in our previous opinion, Farmer v. State

(Farmer I), No. 02-09-00278-CR, 2011 WL 1601311, at *1–3 (Tex. App.—Fort

Worth Apr. 28, 2011, pet. granted) (mem. op., not designated for publication)(op.

on reh’g), judgm’t vacated, 2011 WL 4072126, at *1. Suffice it to say that Farmer

was convicted for driving while intoxicated after ingesting Ambien and Ultram,

and we reversed the trial court’s decision to deny Farmer an involuntary conduct

instruction. Id. The court of criminal appeals granted the State’s petition for

discretionary review and instructed us to consider whether the requested

instruction was a comment on the weight of the evidence. See Farmer II, 2011

WL 4072126, at *1.

                            III. Requested Instruction

      In his appellate brief, Farmer complained that he did not receive the

following jury instruction, which was marked as #2 during the charge conference:

            A person commits an offense only if he voluntarily engages in
      conduct, including an act, or omission. Conduct is not rendered
      involuntary merely because the person did not intend the results of
      his conduct. Therefore, if you believe from the evidence beyond a
      reasonable doubt that the defendant, Kody William Farmer, on or
      about the 19th day of April 2008, did not have the normal use of his
      mental or physical faculties by reason of the introduction of a
      controlled substance to–wit: zolpidem, tramadol, or a combination of
      two or more of these substances, but you further believe from the
      evidence, or have a reasonable doubt thereof, that Kody William
      Farmer took these drugs by accident, and was not the voluntary act


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      or conduct of the defendant, you will acquit the defendant and say
      by your verdict “not guilty.”[2]

      In its response to Farmer’s appellate brief, the State argued that the trial

court “properly refused [Farmer’s] proposed charges as they were blatant

comments on the weight of the evidence” and that Farmer was not entitled to an

instruction on whether or not he committed a “voluntary act.” The State argued

that Farmer’s requested instruction #2 must be read with another instruction that

Farmer also requested, marked as #3 at the charge conference, to understand its

comment-on-the-weight-of-the-evidence argument:

             You are instructed that involuntary intoxication by prescription
      medication, or medications, 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 he did not know that his conduct was wrong
      or was incapable of conforming his conduct to the requirement of the
      law he allegedly violated. Such a condition of the defendant must
      have existed at the very time of the alleged commission of the
      offense.[3]

      In Farmer I, we reviewed Farmer’s complaint about the trial court’s

exclusion of his requested instruction #2, along with his requested instruction #3

      2
       This portion of the instruction is almost verbatim from the involuntary
conduct instruction in Texas Practice Series: Criminal Forms and Trial Manual.
See Michael J. McCormick et al., Texas Practice Series: Criminal Forms and
Trial Manual § 105.11 (11th ed. 2005).
      3
        The State set out what it considered the “pertinent” parts of instructions #2
and #3 in its original brief, its petition for discretionary review, and its brief on
remand; it did not set out anything from Farmer’s requested instruction marked
as #1 during the charge conference. We have set out Farmer’s requested
instruction #1 below in our discussion of whether Farmer sufficiently brought the
voluntary act instruction to the trial court’s attention.


                                         3
as raised by the State. 2011 WL 1601311, at *3–6. We noted that a request for

an instruction on accident “is no request at all,” and that involuntary intoxication is

not a defense to DWI. Id. at *5. But we also concluded that Farmer’s facts were

distinguishable from earlier cases involving prescription drugs and that because

there was some evidence to suggest that Farmer involuntarily took Ambien

because of his wife’s act, the trial court’s denial of Farmer’s requested instruction

#2 constituted some harm under Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g). Id. at *6. Because we did not feel it necessary

to address the substance of Farmer’s requested instruction #2 in order to resolve

the issue before us of whether Farmer was entitled to a voluntariness instruction

at all, we reversed the trial court’s judgment and remanded the case without

considering whether Farmer’s requested instruction #2, or his requested

instruction #3 as raised by the State, constituted an improper comment on the

weight of the evidence. Id.

      In its petition for discretionary review, the State argued (1) that we erred by

failing to address its argument that the proposed jury charge was a blatant

comment on the weight of the evidence and (2) that we erred by holding that

Farmer’s action in taking his own prescription medicine was involuntary.             In

support of its first ground, the State once again set out Farmer’s requested

instructions #2 and #3 to support its argument that “the instruction to the jury that

they MUST believe that [Farmer] ‘exercised no independent judgment or volition

in taking the intoxicant’ is a blatant comment on the weight of the evidence,” and


                                          4
that “the requested charges regarding whether or not he committed a voluntary

act in taking his prescription medication demanded that the jury believe that he

exercised ‘no independent judgment’ in taking his own medications.” The court

of criminal appeals granted the State’s petition only with regard to ground one.

Farmer II, 2011 WL 4072126, at *1.

A. No Objection

      The State did not object to Farmer’s requested instruction #2, or the other

two instructions requested by Farmer, as a comment on the weight of the

evidence, and we previously held that it therefore failed to preserve this

argument for review. See Farmer I, 2011 WL 1601311, at *6. However, the

court of criminal appeals has instructed us that

      [w]hen the State is the prevailing party in the trial court, it is not
      required to present a particular argument in order to raise that
      argument in a defendant’s appeal; rather, the reviewing court is
      required to view the evidence in a light most favorable to the trial
      court’s ruling and uphold the ruling if correct on any theory of law
      applicable to the case.

Farmer II, 2011 WL 4072126, at *1.        Therefore, we will consider the State’s

previously unarticulated objections set out above, which it also set out in its brief

on remand, as well as setting out what it considered the “pertinent” parts of

Farmer’s requested instructions #2 and #3.

B. Comment on the Weight of the Evidence

       Code of criminal procedure article 36.14 requires that the trial court deliver

a written charge “distinctly setting forth the law applicable to the case; not



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expressing any opinion as to the weight of the evidence, not summing up the

testimony, discussing the facts or using any argument in his charge calculated to

arouse the sympathy or excite the passions of the jury.” Tex. Code Crim. Proc.

Ann. art. 36.14 (West 2007). The court of criminal appeals has recently written

on the issue of a jury instruction or definition being a comment on the weight of

the evidence, stating,

      With only limited exceptions, the trial court may not include an
      instruction that focuses the jury’s attention on a specific type of
      evidence that may support a finding of an element of an offense.
      Juries are free to “consider and evaluate the evidence in whatever
      way they consider it relevant to the statutory offenses,” and “special,
      non-statutory instructions, even when they relate to statutory
      offenses or defenses, generally have no place in the jury charge.”

            An instruction, albeit facially neutral and legally accurate, may
      nevertheless constitute an improper comment on the weight of the
      evidence.

Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012) (citations and

footnotes omitted).

      We have also observed that

      [a] charge that assumes the truth of a controverted issue is a
      comment on the weight of the evidence and is erroneous. Likewise,
      a court’s jury instruction violates article 36.14 if it “obliquely or
      indirectly co[n]vey[s] some opinion on the weight of the evidence by
      singling out that evidence and inviting the jury to pay particular
      attention to it.” Also on the “near end” of the “improper-judicial
      comment” spectrum is an instruction that is simply unnecessary and
      fails to clarify the law for the jury.

Hess v. State, 224 S.W.3d 511, 514 (Tex. App.—Fort Worth 2007, pet. ref’d)

(citations omitted). And we have noted that “[t]he trial court must refrain from


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making any remark calculated to convey to the jury its opinion of the evidence in

a particular case.”   Harkins v. State, 268 S.W.3d 740, 745 (Tex. App.—Fort

Worth 2008, pet. ref’d) (citing Tex. Code Crim. Proc. Ann. art. 38.05 (West

1979)). A charge that assumes the truth of a controverted issue is a comment on

the weight of the evidence and is erroneous. Id.

C. The State’s Argument and a Fair Reading of the Requested Instruction

      The State argues that the instructions—by which we infer, from the way

the State has laid them out in its various briefs, that it means Farmer’s requested

instructions #2 and #3—required the jury to believe Farmer’s story and

demanded that the jury “MUST” believe his theory of the case, but this argument

is without support. As set out above, a fair reading of the only two instructions

discussed on appeal simply does not support what the State says.4 Nonetheless,

because the last sentence of Farmer’s requested instruction #3—the “must”

sentence—may improperly cast at least part of that instruction in the language of

command, it may arguably constitute an improper comment.5           See Brown v.

State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003) (stating, in discussion of

      4
        We expressed no opinion on the substance of Farmer’s requested
instructions #2 and #3 in Farmer I because the issue before us was whether an
instruction was warranted rather than the language used. See Farmer I, 2011
WL 1601311, at *6. We did not address Farmer’s requested instruction #1, set
out below, because no one raised it in the original appeal, as no one has done in
any of the briefs filed with regard to this case.
      5
      Again, we pointed out in Farmer I that involuntary intoxication is not a
defense to DWI and that the defense of accident is no longer available. See
2011 WL 1601311, at *5.


                                        7
presumptions, that an instruction should be permissive rather than mandatory),

cert. denied, 541 U.S. 938 (2004). But as our discussion below demonstrates,

whether it constitutes a comment on the weight of the evidence remains

irrelevant to our ultimate disposition of the appeal.

D. Resolution

      The State seeks for us to overrule Farmer’s sole point on appeal, which is:

“The trial court erred in denying Appellant’s request for a jury instruction on

whether or not he committed a ‘voluntary act.’” And as noted above, the court of

criminal appeals refused the State’s second ground: “Did the Court of Appeals

err in holding that Appellant’s action in taking his own prescription medicine was

‘involuntary?’” See Farmer II, 2011 WL 4072126, at *1. Therefore, the real issue

before us remains whether requested instruction #2, if flawed, was still sufficient

to bring the issue of voluntary conduct to the trial court’s attention and thereby

preserve Farmer’s error so that the “some harm” standard under Almanza

applies. See Kirsch, 357 S.W.3d at 649, 652; see also Louis v. State, No. PD-

0323-11, 2012 WL 2007632, at *8 (Tex. Crim. App. June 6, 2012) (noting the

well-established jury charge harm analysis standards under Almanza).

      The code of criminal procedure does not require a defendant to request an

instruction in perfect form; rather, the requested charge must only be sufficient to

call the trial court’s attention to the omission in the court’s charge. Chapman v.

State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (referencing Tex. Code Crim.

Proc. Ann. art. 36.15); see also Ex parte Moreno, 245 S.W.3d 419, 430 (Tex.


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Crim. App. 2008) (“A defendant’s requested jury instruction need not be flawless

or even correct in order to call the trial court’s attention to a deficiency in the

charge and thereby preserve error.” (emphasis added)); see also Bennett v.

State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (“Defensive instructions must

be requested in order to be considered applicable law of the case requiring

submission to the jury.”).

      In deciding whether the trial court understood the request for an

instruction, we must examine the record for statements by the trial court that

reflect what its understanding was, the general theme of the defense evidence,

the various defensive theories presented at trial, and anything else that may shed

light on whether the trial court understood the objection. Jackson v. State, 288

S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

      During his opening statement, Farmer’s counsel said, “I will ask at the end

of the testimony that what happened here was an inadvertent taking of a

prescription medicine.” Farmer and his wife both testified during the defense’s

case. Farmer testified that his wife put his pills out for him to make sure that he

took them, that he did not intentionally take the wrong pill, and that he must have

taken the wrong pill by accident or by mistake, thinking it was something else.

Farmer’s wife testified that she laid his pills out for him, including the one,

Ambien, that he was supposed to take only at night, and that she felt responsible

for the mistake because she had not set them far enough apart for Farmer to

distinguish his morning pills from his evening pills.


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      During the charge conference, the trial court asked if there were any

charge requests, and Farmer’s counsel replied, “I have three proposed jury

instructions. I need to make copies on two of them.”

      Farmer’s requested instruction #1, as included in the record, reads as

follows:

      You are instructed that involuntary intoxication is an affirmative
      defense to prosecution. A person is involuntary intoxicated when:

      1.     the accused has exercised no independent judgment or
      volition in taking the intoxicant; and
      2.     as a result of his intoxication 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.

      In order to satisfy #1, you are hereby instructed [that] the accused:

      1.        was unaware he had ingested an intoxicating substance;
      2.        ingested an intoxicant by force or duress; or
      3.        took a prescribed medication according to the prescription.

      Therefore, if you believe from the evidence beyond a reasonable
      doubt that on the occasion in question the defendant, DEFENDANT,
      did drive while intoxicated, as alleged in the information, but you
      further believe from the evidence, or you have a reasonable doubt
      thereof, that the driving was the result of an involuntary intoxication
      of the defendant, then you will acquit the defendant and say by your
      verdict “Not Guilty.”

His other two requested instructions, #2 and #3, have already been set out

above.6    After a brief recess, the trial court addressed Farmer’s requested

instructions:



      6
       As we previously noted above, Farmer did not complain about the
omission of requested instruction #1 in his appeal, and the State did not address

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      THE COURT: All right. So the evidence that we have here then is—
      and, again, before we—We’ll recall each side to remember the test
      for an instruction is if there is any evidence in the record. And it’s
      not up to me, as the person who decides whether or not to put it in
      the charge, whether, you know, I think it’s sufficient or enough. The
      test is, is there any evidence in the record which if true would
      support the requested charge.

             So, the way—and I’ll listen to each side’s comments. But the
      way I’ve heard the evidence, it seems like it’s saying that the
      defendant recognizes the substances were in his body. He does not
      recollect how they got there. His wife has testified that she laid out
      the Ambien on a microwave and also testified to not seeing it there
      on the day that the defendant was arrested, which would infer that
      the substance was—I mean, there’s an ambiguous inference. I
      mean, you could argue that he did know what it was when he took it,
      or you could just as forcefully argue that he saw the drug sitting
      there, he knew he was supposed to take them, and he took them.

              So the question that we get at then is whether or not the—We
      have a question, potentially, of voluntariness, which would
      encompass voluntary intoxication. I’m not so persuaded that the
      proposed—Let’s look at these jury instructions. The first one, I’m a
      little bit concerned with this one because it looks like you’re asking
      me to instruct them that in order to satisfy number one, you’re
      hereby instructed that these things are true. I’m a little bit concerned
      that that’s kind of a comment on the evidence.[7] I think—I think I—I
      think jury instructions—So, I’m willing to put in there something
      about voluntariness of the act and voluntary intoxication.

             State’s position? [Emphasis added.]




it in its original appellate brief, its petition for discretionary review in the court of
criminal appeals, or its brief on remand.
      7
       We think it clear from the record that the trial court is specifically referring
to Farmer’s requested instruction #1 here, which would in several ways constitute
a comment on the weight of the evidence. But neither party has argued anything
about requested instruction #1 at any time, in any brief.


                                           11
      The State argued against Farmer’s requested instructions based on

Nelson v. State, 149 S.W.3d 206 (Tex. App.—Fort Worth 2004, no pet.), and Aliff

v. State, 955 S.W.2d 892 (Tex. App.—El Paso 1997, no pet.), which we have

previously discussed in Farmer I. See 2011 WL 1601311, at *4–5. And the

State addressed involuntary intoxication, which we also discussed in Farmer I.

See id. at *5 (stating involuntary intoxication is not a defense to DWI). The State

then concluded in part by stating,

      And I believe in that [Nelson or Aliff] case they’re saying that the only
      way that someone could possibly allow an involuntary intoxication
      defense is if maybe someone drank alcohol that someone had
      crushed medication into. You have to show some kind of conduct
      that someone had no control over that a third party did that a person
      could possibly not foresee that would show clearly that the act was
      involuntary.

            In this case, the defendant voluntarily took the intoxicant.
      Whether or not he remembered doesn’t matter. Whether or not he
      knew exactly whether it was Ultram or Zolpidem, that doesn’t matter.
      The fact is that he took the pill. He has a responsibility to know what
      he’s actually ingesting in his system.

Farmer’s counsel responded by stating,

      Judge, not withstanding State’s argument, I believe the facts of this
      case call for an involuntary instruction. We’re not talking about
      alcohol here. I have a defense of accident, also, and I’m entitled to
      that, also. I think the facts speak for themselves and I don’t believe
      that this scenario is exactly the scenario that the State is talking
      about. [Emphasis added.]

The trial court replied, “Let me take a look at these cases.”

      After a recess, Farmer’s counsel reurged his requested jury instructions,

stating, “I think the facts of this case allow it and I would object to the Court not


                                         12
including them in the jury charge.” The trial court overruled his objection. Then

Farmer’s counsel asked to file his requested instructions, and the trial court

stated, “I have them right here and, as soon as the clerk gets here, I’ll have them

filed.” Farmer’s counsel asked, “I did mark them 1, 2, and 3, correct, Judge?”

The trial court responded, “Yes, sir.”

      During his closing argument, Farmer’s counsel asked, “Do you think for a

second he took [Ambien] intentionally? . . . You know the facts of this case. You

know what happened here.”        The State responded by arguing that common

sense should tell the jury that Farmer should have known which pills he was

taking, stating, “Think about all of the evidence and really think about whether he

really, really just had no idea, or should we put some responsibility on a grown

man to take some care when taking dangerous drugs like this?”

      Based on the foregoing and Farmer’s requested written instructions set out

above, which were all filed with the trial court, we think Farmer sufficiently called

the trial court’s attention to his request for an instruction on involuntary act. See

Posey v. State, 966 S.W.2d 57, 61–62 (Tex. Crim. App. 1998) (stating that the

defendant must object to the charge on a defensive issue before he may be

heard to complain about it on appeal); Wooley v. State, 162 Tex. Crim. 378, 285

S.W.2d 218, 219–20 (1955) (stating that if the requested charge was sufficient to

call the court’s attention to error in the main charge, no further exception or

objection to the charge is necessary to preserve error); see also Tex. Code Crim.

Proc. Ann. art. 36.15 (West 2006) (stating that the defendant may “by a special


                                         13
requested instruction, call the trial court’s attention to error in the charge, as well

as omissions therefrom, and no other exception or objection to the court’s charge

shall be necessary to preserve any error reflected by any special requested

instruction which the trial court refuses.”). Because Farmer preserved his jury

charge complaint, in our harm analysis under Almanza, as previously addressed

in Farmer I, he had only to show some harm. See Kirsch, 357 S.W.3d at 649,

652.

       As we previously concluded that Farmer was entitled to an instruction

about the voluntariness of his actions and that failure to include an instruction

constituted some harm, we again sustain Farmer’s sole point. See Farmer I,

2011 WL 1601311, at *6 (stating that the trial court’s denial of Farmer’s request

for an instruction on the voluntariness of his actions constituted some harm, in

that it denied him of a defense that, if believed by the jury, could have resulted in

his acquittal); see also Payne v. State, 11 S.W.3d 231, 232 (Tex. Crim. App.

2000) (holding that a trial court’s error in failing to instruct the jury on

voluntariness of conduct is subject to a harm analysis under Almanza).

                                    IV. Conclusion

       Having been instructed by our court of criminal appeals to consider the

unarticulated objection to the requested instructions #2 and #3 in the trial court’s

charge with regard to a comment on the weight of the evidence, and having

concluded that part of requested instruction #3 may have constituted a comment,

we nonetheless again reverse the trial court’s judgment because Farmer was still


                                          14
entitled to an instruction on voluntariness, and we remand the case to the trial

court.

                                                 BOB MCCOY
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

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

DELIVERED: October 18, 2012




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