Affirmed and Memorandum Opinion filed December 17, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00499-CR
                              NO. 14-14-00500-CR

               KHALON JAVON WESTBROOKS, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 351st District Court
                            Harris County, Texas
                Trial Court Cause Nos. 1342448 & No. 1342449

                 MEMORANDUM OPINION
      Appellant Khalon Javon Westbrooks challenges his convictions for
aggravated sexual assault and burglary, asserting the trial court erred in allowing
certain impeachment evidence and in treating involuntary intoxication as an
affirmative defense in the jury charge. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

      Armed with a knife, appellant kicked down the door and entered the
apartment of a family of four. Appellant ransacked the apartment looking for
drugs and money.      When the family told appellant they did not have either,
appellant became upset and choked the father. Appellant then attacked the mother,
penetrating her vaginally and orally. After appellant left, the mother called 911.
Officer Carlos Garcia responded within minutes. The mother ran to meet Officer
Garcia outside the apartment. As the mother was telling Officer Garcia what had
happened, the mother noticed appellant walking toward them and identified him as
her attacker. Officer Garcia searched appellant and found the father’s credit card
in appellant’s wallet as well as several knives, a ring, some money, a bottle of
prescription pills, and two remote controls. Appellant was arrested and charged by
indictment with aggravated sexual assault and burglary of a habitation.

      In the trial that followed, appellant testified he attended a party on the night
in question. He testified he smoked marijuana and consumed several alcoholic
beverages, but that he did not remember the events of the evening after leaving the
party. Appellant’s ex-girlfriend testified that she saw appellant the night of the
party and she and appellant decided to have sexual intercourse. The ex-girlfriend
testified that appellant could not maintain an erection, so she obtained a
“Clonazepam” from a woman down the street. The ex-girlfriend slipped the pill
into appellant’s drink while he was in the restroom in the hope that it would allow
the two of them to have sex. The ex-girlfriend testified that she did not know the
effects of Clonazepam but had been told it would help. The ex-girlfriend testified
she did not tell appellant she put the pill into his drink because she did not want to
bruise his ego. Appellant stated he did not know he had consumed a pill and could
not remember anything the rest of the night. Appellant argued that he was
involuntarily intoxicated at the time of the events for which he was charged.

      The jury found appellant guilty as charged of both offenses. The trial court

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sentenced appellant to 75 years’ confinement in the Texas Department of
Corrections for aggravated sexual assault and 20 years’ confinement in the Texas
Department of Corrections for burglary. The trial court ordered the sentences to
run concurrently.

      Appellant now challenges both convictions. He argues the trial court erred
in allowing the prosecutor to impeach his testimony by asking about a public-
intoxication arrest because the State gave untimely notice of its intent to do so.
Appellant also complains that the trial court erred in treating intoxication as an
affirmative defense in the jury charge.

                                     ANALYSIS

      A. No Abuse of Discretion in Admitting Evidence of Prior Arrest for
         Public Intoxication
      During appellant’s case-in-chief in the guilt/innocence phase, appellant
sought to show that he was involuntarily intoxicated at the time of the events for
which he was charged. During cross-examination appellant testified that on the
night in question he voluntarily consumed a shot or two “way before” the party, a
beer before the party, and one beer during the party. Appellant testified he was not
drunk that night.     The prosecutor then asked appellant, “Do you ever get
intoxicated?” Appellant responded, “No.” The prosecutor then sought to ask
appellant whether he had been arrested for public intoxication the night before the
events in question. Appellant objected. The trial court allowed the prosecutor to
ask the question and appellant admitted he had been arrested for public
intoxication.

      In his first issue, appellant asserts the trial court erred in permitting the
prosecutor to question appellant regarding the arrest for public intoxication
because it was an extraneous bad act and the prosecutor did not provide reasonable
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notice of the State’s intent to use the act until the day before trial. Appellate courts
apply an abuse-of-discretion standard in reviewing the admission of extraneous-act
evidence. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009);
Morales v. State, 389 S.W.3d 915, 918 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). Appellant filed a motion requesting that the State provide notice of “[a]ny
and all evidence of crimes, wrongs, or acts of the Defendant herein that the State
intends to offer at time of trial for any purpose, including, but not limited to,
impeachment, motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, or character.” On appeal, appellant argues that
allowing this evidence to be admitted at trial violated Texas Rule of Evidence
404(b) and Texas Code of Criminal Procedure article 37.07, section 3(g) because
appellant did not receive proper notice.

       Texas Code of Criminal Procedure article 37.07, section 3, entitled
“Evidence of prior criminal record in all criminal cases after a finding of guilty,”
applies to the punishment phase of the trial rather than to the guilt/innocence
phase. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (West 2016); Morales v.
State, 389 S.W.3d 915, 920 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Presuming for the sake of argument that appellant’s objection to the admission of
this evidence during the guilt/innocence phase included an objection under Texas
Code of Criminal Procedure article 37.07, section 3(g), the trial court did not err in
overruling this objection because this statute does not apply in the guilt/innocence
phase. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3; Morales, 389 S.W.3d at
920.

        Texas Rule of Evidence 404(b), entitled “Crimes, Wrongs, or Other Acts,”
provides:

       (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not

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          admissible to prove a person’s character in order to show that on a
          particular occasion the person acted in accordance with the
          character.
       (2) Permitted Uses; Notice in Criminal Case. This evidence may be
           admissible for another purpose, such as proving motive,
           opportunity, intent, preparation, plan, knowledge, identity, absence
           of mistake, or lack of accident. On timely request by a defendant
           in a criminal case, the prosecutor must provide reasonable notice
           before trial that the prosecution intends to introduce such
           evidence—other than that arising in the same transaction—in its
           case-in-chief.
Tex. R. Evid. 404(b) (emphasis in original). The prosecutor questioned appellant
about his public-intoxication arrest to impeach him during cross-examination in
appellant’s case-in-chief, after appellant raised the defensive theory of involuntary
intoxication. Rule 404(b) requires the State to provide the defendant notice when
the State intends to use the evidence during its case-in-chief. Id. The notice
provision of Rule 404(b) does not apply to impeachment during the appellant’s
case-in-chief. See id.; Jaubert v. State, 74 S.W.3d 1, 2–3 (Tex. Crim. App. 2002)
(noting that the notice provision of Rule 404(b) applies only to the State’s case-in-
chief); Morales, 389 S.W.3d at 920 (same); Stringer v. State, 845 S.W.2d 400, 403
(Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) (holding State was not required
to give notice of extraneous prior offenses offered into evidence during rebuttal).
Because the State was not required to provide appellant notice before using his
public-intoxication arrest to impeach him, the trial court did not abuse its discretion
in admitting the evidence. See Tex. R. Evid. 404(b); Jaubert, 74 S.W.3d at 2–3;
Morales, 389 S.W.3d at 920; Stringer, 845 S.W.2d at 403.                 We overrule
appellant’s first issue.

       B. No Error in Treating Involuntary Intoxication as an Affirmative
          Defense in Jury Charge
       At the charge conference appellant tendered a proposed jury charge stating

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that the State was required to prove beyond a reasonable doubt that appellant was
not involuntarily intoxicated. The trial court charged the jury that appellant had
the burden to prove by a preponderance of the evidence that he was involuntarily
intoxicated. In his second issue, appellant asserts the trial court erred in failing to
charge the jury that the State was required to prove beyond a reasonable doubt that
appellant was not involuntarily intoxicated because involuntary intoxication is a
defense rather than an affirmative defense.

      The distinction between a defense and an affirmative defense can be
important because the accused carries the burden of proof for an affirmative
defense, while the State must disprove a defense. See Tex. Penal Code 2.03(d)
(West 2011); Tex. Penal Code 2.04(d) (West 2011). The trial court must provide
the jury with a written charge setting forth the law applicable to the case. Tex.
Code Crim. Proc. Ann. art. 36.14 (West 2016); Walters v. State, 247 S.W.3d 204,
208 (Tex. Crim. App. 2007). The State must prove the elements of a crime beyond
a reasonable doubt. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App.
2013). A defendant must prove an affirmative defense by a preponderance of the
evidence. Tex. Penal Code Ann. § 2.04(d); Matlock, 392 S.W.3d at 667.

      Appellant contends that involuntary intoxication is not an affirmative
defense because it is not identified as such in the Texas Penal Code. Section 2.04,
entitled “Affirmative Defense,” provides “an affirmative defense in this code is so
labeled by the phrase: ‘It is an affirmative defense to prosecution.’” Tex. Penal
Code Ann. § 2.04. The affirmative defense of involuntary intoxication does not
appear in the Texas Penal Code. See Farmer v. State, 411 S.W.3d 901, 911–15
(Tex. Crim. App. 2013) (Cochran, J., concurring). Appellant argues that because
involuntary intoxication does not appear in the Texas Penal Code, it is not an
affirmative defense under the plain meaning of section 2.04’s language.

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      Section 2.04 does not address every possible affirmative defense nor does
this statute state that every possible affirmative defense is listed in the Texas Penal
Code. Instead, section 2.04 simply states that the affirmative defenses that are in
the code are labeled as such. Because involuntary intoxication is not in the Texas
Penal Code, it is irrelevant that the Texas Penal Code does not label involuntary
intoxication an affirmative defense. See id.

       In any event, the Court of Criminal Appeals has determined that involuntary
intoxication is an affirmative defense. See Mendenhall v. State, 77 S.W.3d 815,
817–18 (Tex. Crim. App. 2002); Torres v. State, 585 S.W.2d 746, 750 (Tex. Crim.
App. [Panel Op.] 1979). We are bound to follow the law as declared by the state’s
highest courts. See Rodriguez v. State, 47 S.W.3d 86, 94 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d).    Thus, we must follow the Court of Criminal
Appeals’s conclusion that involuntary intoxication is an affirmative defense. See
Mendenhall, 77 S.W.3d at 817–18; Torres, 585 S.W.2d at 750; Rodriguez, 47
S.W.3d at 94. Because involuntary intoxication is an affirmative defense, the trial
court did not err in charging the jury that appellant had to prove he was
involuntarily intoxicated by a preponderance of the evidence. See Tex. Penal Code
Ann. § 2.04(d); Mendenhall, 77 S.W.3d at 817–18.            We overrule appellant’s
second issue.




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                                CONCLUSION
      The trial court did not abuse its discretion in allowing the State to impeach
appellant during the guilt/innocence phase regarding his arrest for public
intoxication.   The trial court did not err in charging the jury on involuntary
intoxication as an affirmative defense. Having overruled appellant’s issues, we
affirm the trial court’s judgment.




                                      /s/       Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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