Linda Carol Wilcher AKA Linda Carol South v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00046-CR
LINDA CAROL WILCHER AKA LINDA CAROL SOUTH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No 1
McLennan County, Texas
Trial Court No. 2015-0567-CR1
MEMORANDUM OPINION
In two issues, appellant, Linda Wilcher a/k/a Linda South, challenges her
conviction for driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (West
Supp. 2016). Specifically, appellant contends that: (1) there is insufficient evidence to
support her conviction; and (2) the trial court erred in failing to submit an instruction on
voluntariness in the charge. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
In her first issue, appellant contends that the evidence is legally insufficient to
support her conviction because the State presented no evidence that she voluntarily
drove while intoxicated. We disagree.
A. Standard of Review
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319. “Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
at 13.
Id.
Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if
the record supports conflicting inferences, we must presume that the factfinder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,
443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are
Wilcher v. State Page 2
treated equally: “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder
is entitled to judge the credibility of the witnesses and can choose to believe all, some, or
none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
B. Discussion
Section 49.04(a) of the Penal Code provides that: “[a] person commits an offense
if the person is intoxicated while operating a motor vehicle in a public place.” TEX. PENAL
CODE ANN. § 49.04(a). A person is intoxicated if she has a blood-alcohol concentration of
0.08 or higher or if she does not have the normal use of her mental or physical faculties.
Id. § 49.01(2) (West 2011). In cases not involving alcohol, such as this case, the latter
standard is applicable. See id.; see also Farmer v. State, 411 S.W.3d 901, 905 (Tex. Crim.
Wilcher v. State Page 3
Ohio App. 2013). “The offense of driving while intoxicated is a strict liability crime meaning
that it does not require a specific mental state (e.g., intentionally, knowingly, or recklessly
intending to operate a motor vehicle while intoxicated), only a person on a public
roadway voluntarily operating a motor vehicle while intoxicated.” Farmer, 411 S.W.3d at
905 (citing Owen v. State, 525 S.W.2d 164, 164-65 (Tex. Crim. App. 1975); Ex parte Ross, 522
S.W.2d 214, 217-18 (Tex. Crim. App. 1975), overruled on other grounds by Ex parte McCain,
67 S.W.3d 204 (Tex. Crim. App. 2002)).
Nevertheless, in Farmer, the Court of Criminal Appeals noted:
Section 6.01(a) of the Texas Penal Code places a restriction on offenses listed
in the Penal Code. See TEX. PENAL CODE [ANN.] § 6.01(a) [West (2011)]. In
relevant part, it states that “a person commits an offense only if he
voluntarily engages in conduct, including and act” or “an omission.” Id.
Thus, to be guilty of driving while intoxicated, the accused must meet the
requirements of the driving-while-intoxicated statute and have voluntarily
engaged in an act or omission. See TEX. PENAL CODE [ANN.] §§ 6.01(a),
49.04(a). . . .
We have also stated that voluntariness, as described by Section 6.01(a),
“refers only to one’s own physical body movements[,]” and that a
movement is considered involuntary only if that movement is “the
nonvolitional result of someone else’s act, [was] set in motion by some
independent non-human force, [was] created by a physical reflex or
convulsion, or [was] the product of unconsciousness, hypnosis or other
nonvolitional impetus . . . .” [Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim.
App. 2003)] Thus, a voluntary act that comprised a portion of the
commission of the offense is sufficient to satisfy the requirement of Section
6.01(a), even if that voluntary act was accidental or the consequences of that
act were unintended.
Id. at 905-06.
Wilcher v. State Page 4
On September 8, 2013, Crystal Davidson noticed “there was a car that had pulled
out in front of me. And they were swerving on both sides of the road, kind of weaving
back and forth and speeding up and slowing down” while driving on Losak Road in
Lorena, Texas. Davidson followed the car, which was later identified as appellant’s, for
ten to fifteen minutes. Davidson testified that she also saw the car run “a stop sign or
almost hit a car.” At this point, Davidson called 911.
Officer Jeffrey Foley, formerly with the Hewitt Police Department, responded to
the scene. When describing the video of the incident from the in-car dash camera, Officer
Foley noted the following:
At that point, I had seen the car. I was traveling to get to the car. There was
some distance between us. When you start seeing vehicles moving out of
my way, that’s when I activated the emergency lights on my car. And I
catch up to the driver. She was driving slower than the posted speed
limit—well below; probably from my estimate, 30 or 35 miles an hour in a
50 mile an hour zone. She was swerving onto the right shoulder of the
roadway. By the time I had gotten close enough to her to actually initiate
the stop, she was turning on to Imperial, right there next to Coca-Cola and
Wal-Mart. She was unable to negotiate the right-hand turn onto Imperial
and turned too wide. And if you saw the green motorcycle, she almost
struck the motorcycle when she made the turn. . . .
Eventually, Officer Foley initiated a stop of appellant’s vehicle. Appellant crossed
five lanes of traffic and drove dangerously into a parking lot. After both vehicles had
stopped, Officer Foley approached appellant’s vehicle and noticed that:
She was—her—like I said in the video, her speech was very slurred. She
was unable to complete sentences. She would start to say a sentence and
then just stop mid-sentence or mid-word and then just completely rephrase
that sentence. She just was—her face was—I’m sorry. Her eyes were
Wilcher v. State Page 5
droopy, bloodshot. She just appeared to be having a hard time talking, in
general.
Officer Foley later administered field-sobriety tests, all of which appellant failed.
Specifically, appellant showed six of six clues on the horizontal-gaze-nystagmus test, and
she was unable to complete the walk-and-turn and one-leg-stand tests.
Texas Highway Patrol Trooper Jarrod Hubbard, a drug-recognition expert,
testified that appellant told him that she was taking Xanax and Advil. Appellant told
Trooper Hubbard that she had voluntarily taken the medications “around 6:30 a.m. that
morning.” Trooper Hubbard noted that he evaluated appellant at 12:20 p.m. on the same
day. Later in his testimony, Trooper Hubbard stated that he believed that appellant had
lost the normal use of her mental and physical faculties.
Appellant testified on her own behalf. During her testimony, appellant admitted
that, on the day in question, she operated a motor vehicle on a public roadway; that she
did not have normal use of her mental and physical faculties; and that she was
intoxicated. Appellant also acknowledged that she voluntarily took her medicine on the
day in question, but that she did not take the medications any differently than she usually
did. Appellant denied overdosing, taking the wrong medications, or that the medication
had ever done “anything weird to [her].” On cross examination, appellant noted that she
also took Tramadol in addition to her Xanax prescription. Both of these medications warn
against operating heavy machinery until the patient understands the effects of the
medications on their body.
Wilcher v. State Page 6
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that a rational juror could have concluded beyond a reasonable doubt that appellant
voluntarily took her medicine, was intoxicated, and operated a motor vehicle in a public
place on the day in question. See id. §§ 6.01(a), 49.04(a); Farmer, 411 S.W.3d at 905; see also
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894. Accordingly, we hold
that the evidence is sufficient to support appellant’s conviction. We overrule appellant’s
first issue.
II. THE JURY CHARGE
In her second issue, appellant argues that the trial court erred in denying her
request for a charge instruction regarding the voluntariness of her conduct where she
presented evidence that she did not voluntarily drive while intoxicated.
A. Applicable Law
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly
preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved
at trial by a proper objection, a reversal will be granted only if the error presents egregious
harm, meaning appellant did not receive a fair and impartial trial. Id. To obtain a reversal
Wilcher v. State Page 7
for jury-charge error, appellant must have suffered actual harm and not just merely
theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v.
State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Here, appellant contends that the evidence demonstrated that she was entitled to
an instruction on voluntariness under Section 6.01(a). At trial, appellant requested in
writing and on the record a Section 6.01(a) instruction in the charge, which was denied
by the trial court.1
The district court shall provide the jury with “a written charge distinctly setting
forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
The law applicable to the case includes “statutory defenses, affirmative defenses, and
justifications whenever they are raised by the evidence.” Walters v. State, 247 S.W.3d 204,
208-09 (Tex. Crim. App. 2007). “[A] defense is supported (or raised) by the evidence if
there is some evidence, from any source, on each element of the defense that, if believed
by the jury, would support a rational inference that that element is true.” Shaw v. State,
243 S.W.3d 647, 658-59 (Tex. Crim. App. 2007); see TEX. PENAL CODE ANN. § 2.03(c) (West
1 Appellant requested the following instruction with regard to voluntariness:
You are instructed that a person commits an offense only if he voluntarily engages in
conduct, including an act, an omission, or possession. A person involuntarily takes an
intoxicant if he takes a medication according to a physician’s prescription.
Now, if you believe from the evidence beyond a reasonable doubt that on the
occasion in question the defendant did operate a motor vehicle in a public place while
intoxicated but you further believe from the evidence that operating the vehicle was not
the result of any voluntary act or conduct on the part of the defendant, of if you have a
reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.
Wilcher v. State Page 8
2011) (“The issue of the existence of a defense is not submitted to the jury unless evidence
is admitted supporting the defense.”).
“[W]e do not apply the usual rule of appellate deference to trial court rulings when
reviewing a trial court’s decision to deny a requested defensive instruction.” Bufkin v.
State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). Rather, “we view the evidence in the
light most favorable to the defendant’s requested submission.” Id. A defendant is
entitled to a jury instruction on a defensive issue if it is raised by the evidence, regardless
of the strength or credibility of that evidence. Farmer, 411 S.W.3d at 906 (citing Granger v.
State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999)). However, if the evidence, viewed in the
light most favorable to the defendant, does not raise the defense, an instruction on that
defense is not required. See id.
B. Discussion
As noted in Farmer, “[a]ll that is necessary to satisfy Section 6.01(a) of the Texas
Penal Code is that the commission of the offense included a voluntary act.” 411 S.W.3d at
907 (citing Rogers, 105 S.W.3d at 638) (emphasis in original). In this case, appellant makes
no allegation that her arm movement to pick up and ingest the Ambien, Tramadol, and/or
Advil was the result of anything other than her own conscious action, and no other
evidence at trial supported her request for a jury instruction on voluntariness. See id. at
907-08. Stated another way, this is not a case of unknowingly or unwillingly taking
pharmaceutical medications; rather, this is a case of knowingly taking pharmaceutical
Wilcher v. State Page 9
medication but mistakenly failing to comprehend or anticipate the effect such
medications would have on her body. See id. Indeed, appellant admitted at trial that she
voluntarily took the medications and that she was intoxicated and had no control over
her mental and physical faculties while she was driving. Viewing the evidence in the
light most favorable to appellant, we cannot say that the evidence raised the issue of
whether appellant voluntarily ingested the medications. See Shaw, 243 S.W.3d at 658-59;
Bufkin, 207 S.W.3d at 782; see also Farmer, 411 S.W.3d at 907-08. As such, we conclude that
the trial court properly denied appellant’s request to include a defensive instruction on
voluntariness. See Farmer, 411 S.W.3d at 907-08. We overrule appellant’s second issue.
III. CONCLUSION
Having overruled both issues on appeal, we affirm the judgment of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 28, 2016
Do not publish
[CR25]
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