XIX. Defenses

A. ENTRAPMENT DEFENSE

Evans v. State, 690 S.W.2d 112 (Tex.App. – EI Paso 1985, pet. ref’d).

No entrapment where defendant is allowed to drive to station by police and subsequently stopped again and arrested for DWI.

B. NECESSITY DEFENSE

Shafer v. State, 919 S.W.2d 885 (Tex.App.-Fort Worth 1996, pet. ref’d).

Trial court properly refused to give “justification” instruction. Defendant’s argument was that once she realized she was too intoxicated to drive, she was justified in continuing to drive until she found a safe place to pull over. Sadly, she was stopped and arrested before that point. Court rejected this argument, pointing out it was her own voluntary conduct that caused her to be intoxicated and having done so was not entitled to necessity defense.

Rodriguez v. State, No. 08-03-00497-CR, 2005 WL 2313567 (Tex.App.-EI Paso 2005, no pet.) (not designated for publication).

Defendant was on his way to pick up his in-labor wife and take her to the hospital. Opinion assumes that necessity defense can be raised, but not raised here because there was no evidence that defendant faced an urgent need to avoid harm that outweighed the harm sought to be prevented by driving while intoxicated. Also, this defendant did not admit the offense.

Texas Department Of Public Safety v. Moore, 175 S.W.3d 270 (Houston [1^st Dist.] 2004, no pet.).

Defendant fled scene of altercation after being threatened with a gun which was fired; the defendant drove away, but continued to drive after the threat from which he fled ceased to exist by returning to the scene after the police arrived thus, while expressly declining to rule on whether necessity was initially implicated, this defense was not established regarding defendants subsequent conduct as a matter of law.

Moncivais v. State, No. 04-01-00568-CR, 2002 WL 1445200 (Tex.App.-San Antonio 2002, no pet.) (not designated for publication).

Defendant was victim of continued assault and got into her vehicle and drove to escape her attacker. Defendant held not to be entitled to necessity instruction because did not admit she was intoxicated on night of offense.

Torres v. State, No. 13-98-372-CR, 2000 WL 34251147 (Tex.App.-Corpus Christi 2000, no pet.) (not designated for publication).

An Intoxication Manslaughter case. Held necessity defense not raised because defendant’s belief that she needed to drive while intoxicated from coast to San Antonio after being in a fight with a friend/police officer was not objectively reasonable. The Court held that even though defendant feared the person who assaulted her “might” follow her; the fact that she stopped at a convenience store in Victoria for gas and made a telephone call and did not see Dunaway following her at any time; she intended on traveling all the way back to San Antonio; she made no attempt to contact any police officer outside of Point Comfort; and she made no attempt to stop anywhere to spend the night, even though she knew she was intoxicated, led Court to conclude this situation did not involve imminent harm.

Bjornson v. State, 1996 WL 627374 (Tex.App.-Austin 1996, no pet.)  (not designated for publication).

Necessity defense not raised because defendant’s belief that he needed to drive while intoxicated to look for his missing asthmatic five-year-old was not objectively reasonable.

C. INVOLUNTARY INTOXICATION DEFENSE/INSTRUCTION

Woodman v. State, No. 14-15-00032, 2016 WL 1357365 (Tex.App.-Houston (14^th Dist,) 2016)

Defendant was discharged from hospital where she was being treated for seizures and had received morphine doses and oxycodone.  She was discharged two hours after last dose and she left hospital in a taxi. Two hours later Defendant was driving and hit two pedestrians. At jail she consented to blood draw which showed a significant amount of oxycodone in her blood. Defense requested a charge on involuntary intoxication which was denied and objected to a charge on voluntary intoxication which was overruled.  The Court of Appeals found the charge was properly denied as there was no evidence presented that Defendant was unaware of the effects of Morphine and Percocet. The court also found the voluntary intoxication instruction was properly given.

Ortega v. State, No. 08-13-00233-CR, 2015 WL 590460 (Tex.App. El Paso 2015)

This was a BTR case where Defendant presented evidence that unbeknownst to himself his brother left an open partially filled gas can in the trunk of the car he was driving and that he and his wife noticed an odor. He argued he passed out due to gas fumes which an expert said could mimic alcohol ingestion. Defendant appealed the denial of his request for a charge on involuntary intoxication. The Court of Appeals finds that this defense does not apply to a DWI prosecution as there is no mental state.

Spence v. State, No. 2-08-411-CR, 2009 WL 3720179 (Tex.App.-Fort Worth 2009, pet ref’d) (not designated for publication).

In the bench trial of this case, the defendant admitted to having a small amount to drink but said she thought someone must have drugged her as the amount she consumed was inconsistent with the observed intoxication at the time of the stop. Testimony was put on of another young woman who was drugged and assaulted at that same establishment, but no evidence beyond the suspect assumption was offered to support that something was put in her drink. In supporting the conviction in spite of the trial court’s finding at the time of the conviction that the driver’s intoxication was “involuntary,” the Court of Appeals held this was not a finding of an involuntary act and did not support a defense to DWI. Since involuntary intoxication was not a defense to DWI and the trial court upheld the conviction; it is plain that the court did not intend to find that she was intoxicated as the result of an involuntary act. Moreover, the record supported the finding that the intoxication was not the result of an involuntary act; thus, a rational trier of fact could have found that the evidence was sufficient to establish the elements of DWI beyond a reasonable doubt.

Brown v. State, 290 S.W.3d 247 (Tex.App.-Fort Worth 2009, pet. ref’d).

Defendant claimed he had two drinks before he went to bed, then woke up and took Ambien by mistake instead of his blood pressure pills, and as a result, had no recollection of consuming any more alcohol that night and didn’t recall driving. He asked for a jury instruction on “Involuntary Intoxication”. The Court held that such an instruction would never be available in a DWI case as there is no mental state.

Bearden v. State, No. 01-97-00900-CR, 2000 WL 19638 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d) (not designated for publication).

Defendant testified at trial that someone must have slipped him a drug that caused his intoxication and requested a defensive instruction on “Involuntary Intoxication” arguing that an individual who is unaware of the administration of mind-altering drugs cannot engage in the intentional conduct of operating a motor vehicle any more than a woman under the influence of drugs can voluntarily consent to sexual activity. Absent the defense of involuntary intoxication, individuals who have been the victim of an assault by drugs will be unjustly penalized. The Court rejected this argument finding that the Legislature has not seen fit to include a culpable mental state in its definition of the offense. The Court cited a number of decisions that have held that Involuntary Intoxication cannot apply or did not apply to the facts of a case. In this case the Court found there was no evidence of any drug being added to appellant’s beer and no evidence that he did not voluntarily consume the beer he drank that night.

Stamper v. State, No. 05-02-01730-CR, 2003 WL 21540414 (Tex.App.-Dallas 2003, no pet.)(not designated for publication).

In this case the Court affirmed the rejection of an involuntary instruction request pointing out that what she really seemed to want is an instruction on involuntary act which she did not properly request. The court found involuntary intoxication was not applicable in this case so the lower court was justified in denying her requested instruction and in refusing to let a defense expert testify on this issue.

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

This was a DWI where intoxication arose from defendant’s taking prescription drugs. The defense requested an instruction on “Involuntary Intoxication” and the court affirmed the denial of that request holding that the defense of involuntary intoxication does not apply to persons who are unconscious or semi-conscious at the time of the alleged offense nor does it apply when the defendant’s mental state is not an element of the alleged offense.

Aliff v. State, 955 S.W.2d 891 (Tex.App.-EI Paso 1997, no pet.).

Defendant was intoxicated due to ingestion of prescription drugs. He wanted an instruction on “Involuntary Intoxication” and that request was rejected on two grounds. First, there was no evidence in the record indicating that the defendant took the intoxicating drugs unknowingly, or without knowledge of their effect. Second, involuntary intoxication is a defense to criminal culpability and proof of a culpable mental state is not required in prosecutions for intoxication offenses, including driving while intoxicated.

McKinnon v. State, 709 S.W.2d 805 (Tex.App.-Fort Worth 1986, no pet.).

Defendant testified she only had two glasses of wine and that she “blacked out.” She does not believe this was caused by the wine and thought that the man who served her the wine must have slipped something in her drink. The Court held she was properly denied the defense because there is no evidence of any drug having been added to appellant’s wine and no testimony that appellant did not voluntarily consume the wine.

Curtin v. State, No. 13-04-630-CR, 2006 WL 347025 (Tex.App.-Corpus Christi 2006, no pet.).

Defendant was arrested for DWI after he caused a traffic accident and his breath test showed an alcohol concentration of 0.243. Defendant and his physician testified that defendant suffered from traumatic amnesia at the time of the accident. This was allegedly caused when he was struck in the head by a bar patron earlier that evening. Defendant claims he involuntarily drank in excess because of the effects from the blow to his head. In approving the denial of an instruction on involuntary intoxication, the Court found that the defense did not apply as the defendant’s mental state is not an element of the alleged offense.

D. INSANITY/AUTOMATISM

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

The defense tried to use the defense of automatism. Automatism is defined as “engaging in what would otherwise be criminal conduct but is not criminal conduct if done in a state of unconsciousness or semi-consciousness.” The Court first points out that Texas courts have held that states of unconsciousness or automatism, including epileptic states, fall within the defense of insanity. It then says insanity defense will not stand for an offense like DWI where there is no mental state. With the defense argument that it is focusing on the lack of a voluntary act as a basis for its defense, the Court replies that there is nothing in the record to show that the defendant did not make the decision to get in his car and drive and that he did take the prescription drugs voluntarily, knowing their effect, which bars his claim of involuntary conduct.

Beasley v. State, 810 S.W.2d 838 (Tex.App.-Fort Worth 1991, pet. ref’d).

The defendant admitted to having a few drinks but attributed her signs of intoxication to her body’s reaction to her running out of her prescription which she said caused her to be in a state of a trance-like high. The Court affirmed the denial of an instruction on insanity pointing out that the focus of the insanity defense is clearly upon the mental state of the accused at the time of the offense and because there is no mental state in a DWI case, that defense will not stand.

Aliff v. State, 955 S.W.2d 891 (Tex.App.-EI Paso 1997, no pet.).

Defendant was intoxicated due to ingestion of prescription drugs. He wanted an instruction on insanity defense. The Court held that insanity is not available because to convict a defendant for driving while intoxicated, it is not necessary to prove a culpable mental state; therefore, insanity cannot be a defense to the charge of driving while intoxicated.

E. NO “VOLUNTARY ACT” INSTRUCTION

Howey v. State, No. 05-08-000483-CR, 2009 WL 264797 (Tex.App.-Dallas 2009, no pet.) (not designated for publication).

The defendant admitted to having no more than three drinks at trial, and testified she had left her drink unattended at the bar and that something “must have happened” to alter her as much as she was at the time of the stop. She also claimed gaps in her memory in events of that night after she left the bar. The defense requested a charge under 6.01 of the Texas Penal Code of “Voluntary Act” under the theory that something must have been added to her drink. In affirming the trial court’s rejection of that requested instruction, the Appellate Court relied on the fact that the defendant did not admit she committed the charged offense and the lack of evidence or testimony that someone put something in her drink. Before the defendant is entitled to such a charge on “voluntariness of conduct,” there must be “evidence of an independent event, such as conduct of a third party that could have precipitated the incident.”

Farmer v. State, 411 S.W.3d 901 (Tex.Crim.App. 2013).

Defendant’s action in taking the Ambien pill was a voluntary act because Defendant, of his own volition, picked up and ingested the Ambien pill. It is of no consequence that he mistakenly took the wrong prescription medication when he knew that he was taking a prescription medication and was aware that he was prescribed medications with intoxicating effects. Moreover, because no other evidence at trial raised an issue of Appellant’s voluntariness in taking that medication, the Trial Court properly denied Appellant’s request for a voluntariness instruction.

F. DIABETES

Holland v. State, No. 1-14-00136-CR, 2016 WL 2620801 (Tex.App.-Eastland 2016)

In this felony DWI case, the Defendant was a .19 blood alcohol concentration, the trial judge refused to allow evidence from Defendant’s daughter about the Defendant’s post-arrest diagnosis of and treatment for diabetes and how the symptoms of that disease may have made Defendant appear to be intoxicated. The exclusion followed a relevancy objection made by the State and confirmation from Defense Counsel that he had no medical testimony to offer showing the Defendant had diabetes on the date in question.

G. NO JURY INSTRUCTION ON FAILURE TO ADMINISTER HGN TEST PROPERLY

Spicer v. State, No. 04-15-00247-CR, 2016 WL 889477 (Tex.App.-San Antonio 2016)

Harding v. State, No. 13-14-00090-CR, 2015 WL 6687287 (Tex.App.-Corpus Christi-Edniburd 2016) pdr ref’d

Judge properly denied a requested defense instruction on the reliability of the HGN test and the weight the jury should give it if not properly performed.